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Shibhialta le linn Phaindéim Covid-19Meán Fómhair 2021

Joint Committee on Justice

Report on Civil Liberties during the Covid-19 Pandemic

September 2021

33/JC/12

www.oireachtas.ie

REPORT ON CIVIL LIBERTIES DURING THE COVID-19 PANDEMIC

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COMMITTEE MEMBERSHIP

Joint Committee on Justice

Deputies

James Lawless TD (FF) [Cathaoirleach]

Jennifer Carroll MacNeill TD Patrick Costello TD Michael Creed TD (FG) [Leaschathaoirleach] (GP) (FG)

Pa Daly TD Brendan Howlin TD Martin Kenny TD

(SF) (LAB) (SF)


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TUARASCÁIL MAIDIR LE SAOIRSE SHIBHIALTA LE LINN PHAINDÉIM COVID-19

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Thomas Pringle TD Niamh Smyth TD

(IND) (FF)

Senators

Robbie Gallagher Vincent P. Martin Michael McDowell (FF) (GP) (IND)

Lynn Ruane Barry Ward (IND) (FG)


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Thomas Pringle TD Niamh Smyth TD

(IND) (FF)

Senators

Robbie Gallagher Vincent P. Martin Michael McDowell (FF) (GP) (IND)

Lynn Ruane Barry Ward (IND) (FG)


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Notes:

1. Deputies nominated by the Dáil Committee of Selection and appointed by Order of the Dáil on 3rd September 2020.

2. Senators nominated by the Seanad Committee of Selection and appointed by Order of the Seanad on 25th September 2020.

3. Deputy James O’Connor discharged and Deputy Niamh Smyth nominated to serve in his stead by the Fifth Report of the Dáil Committee of Selection as agreed by Dáil Éireann on 19th November 2020.


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CATHAOIRLEACH’S FOREWORD

The Committee was pleased to facilitate an examination on the topic of ‘Civil Liberties during the COVID-19 pandemic’. In acknowledging the unforeseen impact of the pandemic and the need to introduce restrictions for the protection of public health, the Committee are cognizant of the unprecedented scale of restrictions placed on the public and of the immensely challenging situation facing countries and people on a global scale to try and contain the spread of the pandemic. In reaching out to stakeholders to gain diverse perspectives on the curtailment of civil liberties during the pandemic, the written submissions and witnesses provided the Committee with an insight into several areas where they deemed it was most important to reflect on the approach to policing and governing the pandemic. Among these key areas identified include whether the enforcement of restrictions was proportionate and non-discriminatory, the impact of the pandemic and restrictions on vulnerable groups, the lack of clarity regarding restrictions and the distinction between public health advice and regulations that carried a criminal sanction if breached and the application of democratic oversight and accountability in making regulations. The Committee has made a number of recommendations for these areas and it is hoped that these will receive due consideration. A copy of this report and recommendations will be sent to the Minister for Justice and the Committee looks forward to working proactively and productively with the Minister to address the issues identified regarding the curtailment of civil liberties during the COVID-19 pandemic. I would like to express my gratitude on behalf of the Committee to all the witnesses who attended our public hearing to give evidence and those who forwarded written submissions.

.

James Lawless TD (FF) [Cathaoirleach] September 2021


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CATHAOIRLEACH’S FOREWORD

The Committee was pleased to facilitate an examination on the topic of ‘Civil Liberties during the COVID-19 pandemic’. In acknowledging the unforeseen impact of the pandemic and the need to introduce restrictions for the protection of public health, the Committee are cognizant of the unprecedented scale of restrictions placed on the public and of the immensely challenging situation facing countries and people on a global scale to try and contain the spread of the pandemic. In reaching out to stakeholders to gain diverse perspectives on the curtailment of civil liberties during the pandemic, the written submissions and witnesses provided the Committee with an insight into several areas where they deemed it was most important to reflect on the approach to policing and governing the pandemic. Among these key areas identified include whether the enforcement of restrictions was proportionate and non-discriminatory, the impact of the pandemic and restrictions on vulnerable groups, the lack of clarity regarding restrictions and the distinction between public health advice and regulations that carried a criminal sanction if breached and the application of democratic oversight and accountability in making regulations. The Committee has made a number of recommendations for these areas and it is hoped that these will receive due consideration. A copy of this report and recommendations will be sent to the Minister for Justice and the Committee looks forward to working proactively and productively with the Minister to address the issues identified regarding the curtailment of civil liberties during the COVID-19 pandemic. I would like to express my gratitude on behalf of the Committee to all the witnesses who attended our public hearing to give evidence and those who forwarded written submissions.

.

James Lawless TD (FF) [Cathaoirleach] September 2021


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Table of Contents

COMMITTEE MEMBERSHIP ............................................................................................................. 1 Joint Committee on Justice ................................................................................................................. 1

CATHAOIRLEACH’S FOREWORD .......................................................................... 4

SUMMARY ................................................................................................................. 6

COMMITTEE RECOMMENDATIONS……………………………………………………………….7

CHAPTER 1 – Engagement with Stakeholders .................................................... 11

CHAPTER 2 - Summary of Evidence .................................................................... 13

1. Sanctions and measures to ensure compliance with COVID regulations ............................ 13 2. Lack of clarity and uncertainty regarding regulations............................................................ 16 3. Impact of restrictions on vulnerable groups .......................................................................... 18 4. Changed approach to policing during the pandemic and lessons for the future of policing . 21 5. Restrictions to freedom of assembly and policing of protests ............................................... 24 6. Continuing curtailment of civil liberties and the renewal of emergency restrictions………...26 7. Democratic oversight and accountability of the supervisory functions of the Oireachtas in

making regulations ................................................................................................................. 27

CHAPTER 3 – Summary of Submissions ............................................................. 29

1. Whether restrictions were necessary and proportionate ...................................................... 30 2. Balance between upholding fundamental rights of citizens while imposing necessary

restrictions ........................................................................................................................................ 33 3. Restrictions to freedom of movement and freedom of assembly .......................................... 35 4. Engagement with the public to ensure support for introduction of regulations ..................... 37 5. Endpoint and ‘sunset clauses’ of restrictions ........................................................................ 39 6. Resourcing and training of An Garda Síochána to enforce regulations................................ 40 7. Accountability of the supervisory functions of the Oireachtas in making regulations ........... 43

APPENDICES……………………………………………………………………………52

Appendix 1– Orders of Reference of the Committee……..…………………………………………….45

Appendix 2 - List of Stakeholders and Submissions……………………………………………………51


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SUMMARY

In the context of the rollout of the vaccination programme, the hope of an improved outlook of public health and the gradual easing of restrictions and re-opening of society, the Joint Committee on Justice identified the topic of civil liberties during the COVID-19 pandemic as an issue that merited further examination and discussion by the Committee. The Committee acknowledged that the pandemic resulted in an unprecedented situation where citizen’s civil liberties were severely curtailed for the protection of public health and where the ever-changing public health outlook often required decisions to be made at short notice on which guidelines or restrictions the Government should implement to best protect public health. The Committee also recognised that certain groups and communities were impacted more than others by Covid-19 and by the imposition of lockdowns and restrictions on the public. This included the impact on children’s education by school closures, the impact of increasing rates of domestic violence particularly against women, the impact on the elderly, particularly those living in congregated settings, as well as other at-risk communities and groups, communities with lower socioeconomic statuses, people with disabilities, young people, ethnic and racialised communities and people residing in direct provision centres, among many others. In an effort to review and discuss the response to, and management of, the pandemic in light of its impact on civil liberties, the Committee invited written submissions seeking the views of various stakeholders on this topic. Stakeholders, in addition to any general points on the topic, were asked to comment on whether the restrictions to freedom of movement and freedom of assembly were necessary and proportionate, and whether there was adequate resourcing and training given to members of An Garda Síochána to enable them to ensure adherence with the regulations and legislation. Based on the evidence to the Committee, it is clear that lessons from this experience must be taken onboard to guide the response and the management of any future public health emergencies. In particular, the need to ensure clear and certain messaging from Government regarding the precise nature of regulations and the need to routinely evaluate any regulations introduced to ensure they remain necessary and proportionate are crucial so that similar levels of public support for a collective action problem such as this would be available in future. The impact of the pandemic on civil liberties and potential solutions to the issues that arose as a result are outlined in the following section.


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SUMMARY

In the context of the rollout of the vaccination programme, the hope of an improved outlook of public health and the gradual easing of restrictions and re-opening of society, the Joint Committee on Justice identified the topic of civil liberties during the COVID-19 pandemic as an issue that merited further examination and discussion by the Committee. The Committee acknowledged that the pandemic resulted in an unprecedented situation where citizen’s civil liberties were severely curtailed for the protection of public health and where the ever-changing public health outlook often required decisions to be made at short notice on which guidelines or restrictions the Government should implement to best protect public health. The Committee also recognised that certain groups and communities were impacted more than others by Covid-19 and by the imposition of lockdowns and restrictions on the public. This included the impact on children’s education by school closures, the impact of increasing rates of domestic violence particularly against women, the impact on the elderly, particularly those living in congregated settings, as well as other at-risk communities and groups, communities with lower socioeconomic statuses, people with disabilities, young people, ethnic and racialised communities and people residing in direct provision centres, among many others. In an effort to review and discuss the response to, and management of, the pandemic in light of its impact on civil liberties, the Committee invited written submissions seeking the views of various stakeholders on this topic. Stakeholders, in addition to any general points on the topic, were asked to comment on whether the restrictions to freedom of movement and freedom of assembly were necessary and proportionate, and whether there was adequate resourcing and training given to members of An Garda Síochána to enable them to ensure adherence with the regulations and legislation. Based on the evidence to the Committee, it is clear that lessons from this experience must be taken onboard to guide the response and the management of any future public health emergencies. In particular, the need to ensure clear and certain messaging from Government regarding the precise nature of regulations and the need to routinely evaluate any regulations introduced to ensure they remain necessary and proportionate are crucial so that similar levels of public support for a collective action problem such as this would be available in future. The impact of the pandemic on civil liberties and potential solutions to the issues that arose as a result are outlined in the following section.


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COMMITTEE RECOMMENDATIONS The following recommendations were made by the Committee in relation to the topic:

1. The Committee recommends that in future situations, care is taken to ensure

that regulations are made clear to the public and that there is no confusion over

public health advice and regulations carrying a criminal sanction. This could be

aided by the creation of a single point of contact, e.g. a helpline run by a

Government Department, which could be consulted by members of the public

and others to explain the terms of complex legislation and could clarify what

was allowed and not allowed under each new regulation.

2. The Committee recommends that the use of individual discretion by members

of An Garda Síochána when policing public health regulations ought to be

supported by clear messaging from Government, to ensure that this discretion

is applied appropriately, fairly and equitably.

3. The Committee recommends the diversification of channels through which the

Government communicates with the wider public, to ensure that minority groups

have access to accurate information which has been adapted to best meet their

individual needs.

4. The Committee recommends that the Government devise a strategy to address

the premature release of information into the media, along with tackling the

issue of disinformation in media and online, to ensure that the wider public

receives information which is accurate, reliable, and attributable to the relevant

decision-making structures.

5. It is recommended that a regular human rights impact assessment on the

impact of the emergency situation and restrictions on at-risk groups be carried

out in order to ensure Government takes appropriate and sufficient measures

to mitigate negative impacts.


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6. The Committee recommends that the Garda Commissioner collects and

disseminates comprehensive, detailed and disaggregated data regarding the

exercising of all COVID-19 related enforcement powers by An Garda Síochána,

which tracks all prohibited grounds of discrimination under the Equal Status

Acts (2000-2018), to ensure that their actions in this regard are compliant with

Section 42 of the Irish Human Rights and Equality Commission Act 2014.

7. The Committee recommends that, in circumstances where it is deemed that the

office of the Garda Commissioner is not the appropriate body through which to

process this disaggregated data, a suitable alternative ought to be identified.

8. The Committee recommends that Gardaí should disseminate all relevant data

relating to the number of interactions they have with members of the public, to

the relevant bodies, to ascertain where and how much enforcement of

restrictions impacted society, but particularly on minority groups and

communities.

9. The Committee recommends that the office of the Garda Commissioner release

data relating to the geographical spread of COVID-19 checkpoints, to ascertain

the extent to which particular towns and regions are policed more frequently

than others.

10. The Committee recommends that cultural competency training forms an

integral part of continuous professional development for all members of An

Garda Síochána, to ensure that their powers are being exercised in a non-

discriminatory manner, in line with best practice in cultural competency, human

rights and equality.

11. The Committee recommends that An Garda Síochána provide data on the use

of ‘anti-spit hoods’ during the COVID-19 pandemic. Additionally, the use of ‘anti-

spit hoods’ by An Garda Síochána ought to be reviewed, both in the context of

policing during public health emergencies and beyond, due to concerns

regarding the implications of their use on individual human rights and dignities.


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6. The Committee recommends that the Garda Commissioner collects and

disseminates comprehensive, detailed and disaggregated data regarding the

exercising of all COVID-19 related enforcement powers by An Garda Síochána,

which tracks all prohibited grounds of discrimination under the Equal Status

Acts (2000-2018), to ensure that their actions in this regard are compliant with

Section 42 of the Irish Human Rights and Equality Commission Act 2014.

7. The Committee recommends that, in circumstances where it is deemed that the

office of the Garda Commissioner is not the appropriate body through which to

process this disaggregated data, a suitable alternative ought to be identified.

8. The Committee recommends that Gardaí should disseminate all relevant data

relating to the number of interactions they have with members of the public, to

the relevant bodies, to ascertain where and how much enforcement of

restrictions impacted society, but particularly on minority groups and

communities.

9. The Committee recommends that the office of the Garda Commissioner release

data relating to the geographical spread of COVID-19 checkpoints, to ascertain

the extent to which particular towns and regions are policed more frequently

than others.

10. The Committee recommends that cultural competency training forms an

integral part of continuous professional development for all members of An

Garda Síochána, to ensure that their powers are being exercised in a non-

discriminatory manner, in line with best practice in cultural competency, human

rights and equality.

11. The Committee recommends that An Garda Síochána provide data on the use

of ‘anti-spit hoods’ during the COVID-19 pandemic. Additionally, the use of ‘anti-

spit hoods’ by An Garda Síochána ought to be reviewed, both in the context of

policing during public health emergencies and beyond, due to concerns

regarding the implications of their use on individual human rights and dignities.


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12. The Committee recommends that in future similar situations, more should be

done to help protect the relationship between Gardaí and civilians and their

approach of ‘policing by consent’. For example, public health campaigns should

ensure the public are aware that regulations enforced by An Garda Síochána are

for the protection of public health and will not be enforced any longer than is

necessary.

13. The Committee welcomes the introduction of Operation Faoiseamh and the

potential for this approach to become a feature of policing regarding incidences

of domestic violence. It is recommended that a review be undertaken of this

operation in terms of its effectiveness and that the potential for it to be retained

in future be assessed.

14. The Committee recommends that the Government engage meaningfully with An

Garda Síochána staff associations regarding their experience of policing during

the pandemic, to ensure that future decisions regarding public health guidance

and regulations take into account the insights from individuals tasked with their

enforcement.

15. The Committee recommends that, in the event of future restrictions on public

gatherings, specific guidance is issued, for both the public and An Garda

Síochána, regarding the management of protests and the implications for the

fundamental rights of individuals to gather in this way.

16. The Committee recommends that the views of experts in the fields of human

rights, equality and inclusion ought to be sought as part of the democratic

oversight of decisions made by the Government, to ensure that the impact of

these decisions on individuals’ human rights and civil liberties is taken into

account.

17. The Committee recommends that, where feasible, sufficient time is provided in

future for the Oireachtas to scrutinise emergency legislation, to ensure that this


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legislation undergoes a process of robust democratic oversight.

18. The Committee recommends that consideration be given to limiting the period

between which emergency legislation must be renewed to allow more frequent

re-assessments of the necessity and proportionality of such legislation to occur.

19. The Committee supports the continued inclusion of ‘sunset clauses’ in all

emergency legislation, which should be maintained in any future situation

requiring such legislation, to reduce the opportunity for these powers to become

embedded into society or legislation.

20. Emergency legislation should be discontinued as soon as it is no longer

necessary or proportionate, even if this becomes apparent prior to reaching the

expiration date as set out in a ‘sunset clause’ and is in the interest of public health

and safety.


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legislation undergoes a process of robust democratic oversight.

18. The Committee recommends that consideration be given to limiting the period

between which emergency legislation must be renewed to allow more frequent

re-assessments of the necessity and proportionality of such legislation to occur.

19. The Committee supports the continued inclusion of ‘sunset clauses’ in all

emergency legislation, which should be maintained in any future situation

requiring such legislation, to reduce the opportunity for these powers to become

embedded into society or legislation.

20. Emergency legislation should be discontinued as soon as it is no longer

necessary or proportionate, even if this becomes apparent prior to reaching the

expiration date as set out in a ‘sunset clause’ and is in the interest of public health

and safety.


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CHAPTER 1 – Engagement with Stakeholders

Introduction

The Joint Committee on Justice invited submissions from stakeholders on the topic of

civil liberties during the COVID-19 Pandemic.

On 22nd June 2021, the Committee held a public engagement with several of these

stakeholders, as laid out in the table below:

Table 1: List of Stakeholders present at Committee meeting:

Organisation Witnesses

Economic and Social Research

Institute

Professor Pete Lunn

Head of the behavioural research unit

IHREC

Professor Caroline Fennell,

Commission member

Mr. Tony Geoghegan, Commission

member

ICCL

Mr Liam Herrick, Executive Director

Ms Elizabeth Carthy, Policy Officer

AGSI

Ms Antoinette Cunningham, General

Secretary

Mr Paul Curran, President

Office of the Garda Commissioner

Deputy Commissioner Anne Marie

McMahon, Policing & Security

Assistant Commissioner Anne Marie

Cagney

Ms Kate Mulkerrins, Executive Director,

Legal


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The primary focus of the meeting was to allow for an engagement between the

Members and stakeholders to discuss possible areas of reform which may be

necessary regarding the curtailment of civil liberties during the COVID-19 Pandemic.

This report summarises the engagements and the key points considered by the

Committee when drafting the recommendations set out in this Report.


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The primary focus of the meeting was to allow for an engagement between the

Members and stakeholders to discuss possible areas of reform which may be

necessary regarding the curtailment of civil liberties during the COVID-19 Pandemic.

This report summarises the engagements and the key points considered by the

Committee when drafting the recommendations set out in this Report.


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CHAPTER 2 - Summary of Evidence

In the course of the public hearing, a number of important points were raised. A

summary of the main areas discussed in evidence to the Committee follows.

1. Sanctions and measures to ensure compliance with COVID regulations

During the course of the meeting, Members questioned witnesses on what they

believed were the most effective measures to ensure compliance with COVID

regulations. In particular, Members questioned whether some form of sanction was

necessary to ensure compliance so that those who are found to breach regulations

would be visibly punished and this would deter others from breaking regulations and

prevent social cohesion from being undermined as a result. They also questioned how

enforcement could occur without breaching the boundary of proportionality and

whether alternative methods, like having faith in ‘public buy-in’ or the use of discretion

and common sense, were suitable approaches to ensuring compliance with

regulations.

In response, some witnesses stated that they were against the application of criminal

sanctions on public health matters. They referenced the initial stages of the pandemic

where Gardaí were able to explain and inform people of guidelines without enforcing

penalties and argued that this was a beneficial approach. It was also pointed out that

the Government was able to bring in regulations that did not carry a criminal offence

and that there are a number of ways to encourage the public to comply with requests

that are not ordinarily crimes.

They told the Committee that at this stage of the pandemic the impact of criminal law

enforcement to encourage compliance would be marginal and could call into question

standards of necessity and proportionality from a human rights perspective.

Stakeholders also informed the Committee that the continued use of criminal justice

sanctions and Fixed Charge Notices to enforce regulations is likely to have a

detrimental impact on the relationship between An Garda Síochána and the public.


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This relationship had seen several positive developments during the pandemic

including the protection of vulnerable people and the effective use of the model of

community policing “by consent”. However, these were balanced against negative

elements such as public order policing and the perceived uneven policing of protests.

They argued that it was the Government’s responsibility to remove these criminal

sanctions and controls, to allow normal and enhanced community policing to return;

otherwise it would result in damage to the relationship between the public and Gardaí.

The AGSI felt that using a graduated approach through the tactic of the 4 Es (Engage,

Explain, Encourage, Enforce) worked well for its members when engaging with the

public, however it acknowledged that over time it had become more difficult to enforce

restrictions as the public became tired of the pandemic. It felt that more could have

been done to increase public awareness of the reasons for restrictions and to clarify

that they were restrictions to protect public health, as opposed to ‘Garda regulations’.

Over-regulation would make it more difficult for the Gardaí to return to ‘policing by

consent’, which is a central tenet of policing in Ireland.

The IHREC argued that the lack of clarity in Government communications and mixed

messaging over regulations confused the public as to what they were allowed to do

and what actions might constitute a criminal offence (see Point 2). This further

undermined the policing of the pandemic by Gardaí and the sheer number of

regulations that were forthcoming were confusing for both parties to understand.

However, Professor Lunn pointed out that in terms of collective action problems, the

most important factors are that the public sees the rationale behind restrictions, and

that everyone must abide by restrictions if they are to work for everyone. Individuals

are influenced by the behaviour of those around them, therefore high-level and

individual instances of non-compliance can undermine overall compliance with

regulations.


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This relationship had seen several positive developments during the pandemic

including the protection of vulnerable people and the effective use of the model of

community policing “by consent”. However, these were balanced against negative

elements such as public order policing and the perceived uneven policing of protests.

They argued that it was the Government’s responsibility to remove these criminal

sanctions and controls, to allow normal and enhanced community policing to return;

otherwise it would result in damage to the relationship between the public and Gardaí.

The AGSI felt that using a graduated approach through the tactic of the 4 Es (Engage,

Explain, Encourage, Enforce) worked well for its members when engaging with the

public, however it acknowledged that over time it had become more difficult to enforce

restrictions as the public became tired of the pandemic. It felt that more could have

been done to increase public awareness of the reasons for restrictions and to clarify

that they were restrictions to protect public health, as opposed to ‘Garda regulations’.

Over-regulation would make it more difficult for the Gardaí to return to ‘policing by

consent’, which is a central tenet of policing in Ireland.

The IHREC argued that the lack of clarity in Government communications and mixed

messaging over regulations confused the public as to what they were allowed to do

and what actions might constitute a criminal offence (see Point 2). This further

undermined the policing of the pandemic by Gardaí and the sheer number of

regulations that were forthcoming were confusing for both parties to understand.

However, Professor Lunn pointed out that in terms of collective action problems, the

most important factors are that the public sees the rationale behind restrictions, and

that everyone must abide by restrictions if they are to work for everyone. Individuals

are influenced by the behaviour of those around them, therefore high-level and

individual instances of non-compliance can undermine overall compliance with

regulations.


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He argued that behavioural evidence has demonstrated that some sanction for non-

compliance is necessary to ensure the general public is not deterred from following

rules. Policymakers must then focus on what the appropriate level of sanction is when

calls to use common sense are not being heeded.


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2. Lack of clarity and uncertainty regarding regulations Both stakeholders and Members agreed that mixed messaging from Government and

the lack of clarity regarding the nature of regulations during the pandemic had caused

confusion among the public.

Witnesses were unanimous in the need for clarity when the Government announces

public health regulations. They argued that a basic principle of the rule of law is that

individuals subject to that law should have clarity about what is expected of them and

when they are about to overstep the boundaries and breach a law. They pointed to

several situations in which this lack of clarity caused confusion over what was defined

as public health advice against measures carrying a criminal sanction, for example the

advice to elderly people to cocoon during the period of the first lockdown and

thereafter.

Similarly, mixed messaging from the Government also caused issues in relation to

outdoor drinking as business owners, Gardaí and members of the public were

uncertain as to what was allowed in different areas and this was complicated by, for

example, local by-laws for drinking in public, which in some instances contradicted the

advice from Government.

As discussed in Point 4, it was argued that it was unfair to request that a Garda

member may use their discretion when policing the consumption of alcohol in an

unlicensed area as it is very difficult for them to use discretion appropriately or

equitably when the regulations themselves are not clear. Instead of such requests on

Garda members, witnesses stated that Government must explain regulations clearly

to the public to avoid confusion.

Members argued that the speed at which the public health outlook shifted, and the

need for the Government to react to advice coming from public health experts such as

NPHET, meant that fast decision-making was, to an extent, unavoidable.

It was suggested that a single point of contact to explain the details of regulations

would have been extremely beneficial in answering common questions about new


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2. Lack of clarity and uncertainty regarding regulations Both stakeholders and Members agreed that mixed messaging from Government and

the lack of clarity regarding the nature of regulations during the pandemic had caused

confusion among the public.

Witnesses were unanimous in the need for clarity when the Government announces

public health regulations. They argued that a basic principle of the rule of law is that

individuals subject to that law should have clarity about what is expected of them and

when they are about to overstep the boundaries and breach a law. They pointed to

several situations in which this lack of clarity caused confusion over what was defined

as public health advice against measures carrying a criminal sanction, for example the

advice to elderly people to cocoon during the period of the first lockdown and

thereafter.

Similarly, mixed messaging from the Government also caused issues in relation to

outdoor drinking as business owners, Gardaí and members of the public were

uncertain as to what was allowed in different areas and this was complicated by, for

example, local by-laws for drinking in public, which in some instances contradicted the

advice from Government.

As discussed in Point 4, it was argued that it was unfair to request that a Garda

member may use their discretion when policing the consumption of alcohol in an

unlicensed area as it is very difficult for them to use discretion appropriately or

equitably when the regulations themselves are not clear. Instead of such requests on

Garda members, witnesses stated that Government must explain regulations clearly

to the public to avoid confusion.

Members argued that the speed at which the public health outlook shifted, and the

need for the Government to react to advice coming from public health experts such as

NPHET, meant that fast decision-making was, to an extent, unavoidable.

It was suggested that a single point of contact to explain the details of regulations

would have been extremely beneficial in answering common questions about new


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regulations. This could have taken the form of a helpline run by a certain Department

which would have been the ‘authority’ to contact and who could have provided

definitive answers to callers on the changing COVID regulations. It was acknowledged that this is something that is easier to argue for with the benefit of hindsight.

The short notice at which regulations were implemented, and their complex nature

also aggravated the ability of the public to follow or understand the rules. An Garda

Síochána had to rely on supports and the guidance of staff management to interpret

complicated and changing regulations.


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3. Impact of restrictions on vulnerable groups The impact of restrictions on individuals during the COVID-19 pandemic was

discussed and particular focus was given to the impact these regulations had had on

groups that were more vulnerable.

The IHREC informed the Committee that the elderly, women, homeless people and

people who are socio-economically disadvantaged had been more adversely affected

by these restrictions.

It was also pointed out that a person’s home situation had a significant impact on how

an individual experienced the pandemic. For example, some children’s access to

education was impacted by the digital divide (where they had insufficient access to

technology), while more women were impacted by the significant increase in the rates

of domestic violence during the pandemic.

Witnesses stated to the Committee that since these restrictions have been in place for

over a year, the time had come to review these restrictions and learn lessons from

them. The vulnerable groups and those more adversely affected by these regulations

should be consulted when creating future regulations to gauge the impact they may

have on them and to ensure sufficient supports are provided for these groups to assist

them in complying with the regulations, and that more proportionate and targeted

measures are used in the public health effort that would minimize the impact of

restrictions on vulnerable groups.

Similarly, questions were raised regarding the disaggregated data collected by Gardaí

while engaging with the public regarding COVID-19 regulations.

The IHREC informed the Committee that their report on Ireland’s emergency powers

during COVID-19 (carried out in conjunction with the COVID-19 Law and Human

Rights Observatory of Trinity College Dublin) suggested that policing enforcement of

COVID-19 restrictions had a disproportionate impact on younger people and ethnic

and racial minorities, which includes members of the Travelling and Roma

communities.


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3. Impact of restrictions on vulnerable groups The impact of restrictions on individuals during the COVID-19 pandemic was

discussed and particular focus was given to the impact these regulations had had on

groups that were more vulnerable.

The IHREC informed the Committee that the elderly, women, homeless people and

people who are socio-economically disadvantaged had been more adversely affected

by these restrictions.

It was also pointed out that a person’s home situation had a significant impact on how

an individual experienced the pandemic. For example, some children’s access to

education was impacted by the digital divide (where they had insufficient access to

technology), while more women were impacted by the significant increase in the rates

of domestic violence during the pandemic.

Witnesses stated to the Committee that since these restrictions have been in place for

over a year, the time had come to review these restrictions and learn lessons from

them. The vulnerable groups and those more adversely affected by these regulations

should be consulted when creating future regulations to gauge the impact they may

have on them and to ensure sufficient supports are provided for these groups to assist

them in complying with the regulations, and that more proportionate and targeted

measures are used in the public health effort that would minimize the impact of

restrictions on vulnerable groups.

Similarly, questions were raised regarding the disaggregated data collected by Gardaí

while engaging with the public regarding COVID-19 regulations.

The IHREC informed the Committee that their report on Ireland’s emergency powers

during COVID-19 (carried out in conjunction with the COVID-19 Law and Human

Rights Observatory of Trinity College Dublin) suggested that policing enforcement of

COVID-19 restrictions had a disproportionate impact on younger people and ethnic

and racial minorities, which includes members of the Travelling and Roma

communities.


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In this situation, the IHREC informed the Committee that, in order to review the

potential impact of police enforcement of restrictions against certain groups, it is vital

that access to comprehensive, detailed and disaggregated data are provided. These

data would show the interactions between an Garda Síochána and citizens and should

be broken down to demonstrate these interactions by ethnic groups. They stressed

that access to these data is essential to ensure transparency in the exercise of powers

and that they are being exercised in a non-discriminatory manner, in line with human

rights and equality principles.

In response, witnesses from the Garda Commissioner’s Office stated that the Garda

Commissioner is aware and supportive of the need to collect these disaggregated

data, and of the responsibility to ensure non-discrimination and compliance with

section 42 of the Irish Human Rights and Equality Commission Act 20141. The

Committee was informed that the Commissioner had been given advice regarding this

and that a report is currently with him.

However, witnesses questioned whether An Garda Síochána would be the most

appropriate body to collect these data when it does not have expertise in collecting

sensitive data and the collection of such data could involve a conflict with suspects or

an interaction with a vulnerable individual.

Witnesses suggested to the Committee that a better system for collecting and further

processing disaggregated data might involve An Garda Síochána referring that data

to another State body which already holds this data. This would involve legislative

change to allow a unique identifier to be created and transferred to the relevant entity.

Other witnesses praised the openness of An Garda Síochána regarding the broader

collection of aggregated data and commented that both the Gardaí and the Policing

Authority have frequently published high-quality and detailed data relating to policing

throughout the pandemic. They informed the Committee that this level of transparency

is a new and positive feature of policing during the pandemic.

1 Section 42(1) requires a public body (i) to eliminate discrimination, (ii) to promote equality of opportunity and treatment of its staff and the persons to whom it provides services, and (iii) to protect the human rights of its members, staff and the persons to whom it provides services.


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Members raised further questions regarding the impact of the pandemic on certain

groups. It was argued by some that young men were not disproportionately impacted

by restrictions caused by the pandemic, since young men are also disproportionately

represented throughout the criminal justice system. Rather it was argued that is it

clearer that individuals in lower socio-economic groups were more disproportionately

affected, as their ability to withstand restrictions was more adversely impacted than

that of other individuals.

Members questioned whether Garda engagements with individuals should be

monitored under the Equal Status Acts2 to see if they breached principles of non-

discrimination.

In a similar manner, it was pointed out that data on the use of fixed-charge fines

demonstrated that 2,910 fines were issued in Ballymun but only 75 were issued in Dún

Laoghaire, by May 2021. Questions were raised as to whether it is possible that police

discrimination and bias may have played an invisible role in deciding which areas to

police and whether individuals in these areas were policed or sanctioned more

frequently than those in other areas. Witnesses were also asked if they could provide

further information on the geographical spread of COVID checkpoints to ascertain

whether some areas are policed more frequently than others.

In response, the AGSI informed Members that the decision on where to locate

checkpoints is organised by Garda management as part of the national policing plan.

The IHREC pointed out that there has been evidence of discrimination against minority

groups through racial profiling and through more frequent experiences of being

stopped and searched than other groups. They stated that it is important that cultural

confidence is an integral part of An Garda Síochána and that it is embedded in their

initial training of members and in wider training provided so that all members of the

organisation receive this training.

2 Equal Status Acts 2000-2018.


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Members raised further questions regarding the impact of the pandemic on certain

groups. It was argued by some that young men were not disproportionately impacted

by restrictions caused by the pandemic, since young men are also disproportionately

represented throughout the criminal justice system. Rather it was argued that is it

clearer that individuals in lower socio-economic groups were more disproportionately

affected, as their ability to withstand restrictions was more adversely impacted than

that of other individuals.

Members questioned whether Garda engagements with individuals should be

monitored under the Equal Status Acts2 to see if they breached principles of non-

discrimination.

In a similar manner, it was pointed out that data on the use of fixed-charge fines

demonstrated that 2,910 fines were issued in Ballymun but only 75 were issued in Dún

Laoghaire, by May 2021. Questions were raised as to whether it is possible that police

discrimination and bias may have played an invisible role in deciding which areas to

police and whether individuals in these areas were policed or sanctioned more

frequently than those in other areas. Witnesses were also asked if they could provide

further information on the geographical spread of COVID checkpoints to ascertain

whether some areas are policed more frequently than others.

In response, the AGSI informed Members that the decision on where to locate

checkpoints is organised by Garda management as part of the national policing plan.

The IHREC pointed out that there has been evidence of discrimination against minority

groups through racial profiling and through more frequent experiences of being

stopped and searched than other groups. They stated that it is important that cultural

confidence is an integral part of An Garda Síochána and that it is embedded in their

initial training of members and in wider training provided so that all members of the

organisation receive this training.

2 Equal Status Acts 2000-2018.


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4. Changed approach to policing during the pandemic and lessons for the future of policing

In the course of the engagement Members and witnesses discussed the changes to

policing during the pandemic and any lessons that had been taken onboard for the

future of policing.

Witnesses and Members agreed that the value placed on community policing had

been a positive aspect of policing during the pandemic. It was suggested that the

relationship between An Garda Síochána and the public had improved during the

pandemic, as Gardaí’s informal engagements with the public and the use of a

graduated approach to enforcing regulations was highlighted in this regard. While

community policing has always been a central value of An Garda Síochána, witnesses

agreed that its importance had been demonstrated during the pandemic and

community policing will be at the centre of An Garda Síochána’s next three-year

strategy, which is currently in development.

Witnesses also asked about the progress of Operation Faoiseamh and the interaction

of the Gardaí with vulnerable groups as part of this operation. Witnesses informed the

Committee that at the start of the pandemic it was acknowledged that restrictions on

movement could result in increasing levels of domestic violence, and Operation

Faoiseamh was launched to provide additional proactive support and protection to

victims of domestic abuse.

As part of this operation, the Gardaí also engaged extensively with NGOs to help

members of ethnic minorities and stated that these interactions were informative in

terms of how to network and engage with people at their time of greatest need, while

maintaining a proactive and empathetic approach.

Witnesses informed the Committee that the Gardaí are very attuned and sensitive to

the problem of domestic violence, which also increases at other times of the year

including holiday periods and other occasions where large groups of family and friends

are gathered together. Therefore, An Garda Síochána believes it is important that the

approach used in Operation Faoiseamh towards victims of domestic violence be

retained after the pandemic.


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In addition, the use of internal communications within the police forces had changed

during the pandemic and its use had increased in order to disseminate complex

messaging regarding COVID regulations and public health guidelines on the use of

PPE and social distancing. An increased use of technology to deliver briefings,

arrange meetings and to deliver essential messages to community groups was also

highlighted to the Committee and witnesses stated that both of these procedures

would be reviewed so that the successful elements of both would be maintained within

An Garda Síochána’s day-to-day operations.

The use of discretion by Gardaí when engaging with members of the public was also

discussed. This was praised by some Members who argued that the approach of

‘policing by consent’ and exercising discretion is an important element of the policing

culture in Ireland and contrasts with the rigidity and even injustice in other policing

cultures where discretion is not utilised.

However, witnesses argued that in order for Gardaí to effectively use discretion there

must be crystal clear messaging from the Government regarding restrictions and the

public should be clear on when they have breached regulations.

Discretion should always be applied appropriately, fairly and equitably in similar

circumstances. It was pointed out in discussions surrounding the consumption of

alcohol in outdoor areas, that it is unfair on both business owners and Gardaí when

the Gardaí are asked to make use of discretion in a situation where the regulations

are not clear as this will result in an unfair application of discretion by different Garda

members and will undermine policing efforts.

Witnesses informed the Committee that they believed there had been a missed

opportunity by the Government to engage with Garda staff associations regarding the

policing of the pandemic. They expressed disappointment about this as they argued

that Garda members could have provided feedback about their first-hand experience

of enforcing regulations and provided an insight into which regulations were harder to

enforce.


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In addition, the use of internal communications within the police forces had changed

during the pandemic and its use had increased in order to disseminate complex

messaging regarding COVID regulations and public health guidelines on the use of

PPE and social distancing. An increased use of technology to deliver briefings,

arrange meetings and to deliver essential messages to community groups was also

highlighted to the Committee and witnesses stated that both of these procedures

would be reviewed so that the successful elements of both would be maintained within

An Garda Síochána’s day-to-day operations.

The use of discretion by Gardaí when engaging with members of the public was also

discussed. This was praised by some Members who argued that the approach of

‘policing by consent’ and exercising discretion is an important element of the policing

culture in Ireland and contrasts with the rigidity and even injustice in other policing

cultures where discretion is not utilised.

However, witnesses argued that in order for Gardaí to effectively use discretion there

must be crystal clear messaging from the Government regarding restrictions and the

public should be clear on when they have breached regulations.

Discretion should always be applied appropriately, fairly and equitably in similar

circumstances. It was pointed out in discussions surrounding the consumption of

alcohol in outdoor areas, that it is unfair on both business owners and Gardaí when

the Gardaí are asked to make use of discretion in a situation where the regulations

are not clear as this will result in an unfair application of discretion by different Garda

members and will undermine policing efforts.

Witnesses informed the Committee that they believed there had been a missed

opportunity by the Government to engage with Garda staff associations regarding the

policing of the pandemic. They expressed disappointment about this as they argued

that Garda members could have provided feedback about their first-hand experience

of enforcing regulations and provided an insight into which regulations were harder to

enforce.


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However, some stakeholders including ICCL noted the wide expansion of police

powers to enforce public health guidance despite research showing the most effective

way to implement public health guidance is through positive and clear communication.

ICCL highlighted the risk that an over-reliance on police powers demonstrated a move

away from ‘policing by consent’ to coercion and expressed concern about the trend

during the pandemic to ever increasing powers that encroached on private life in

significant ways.

ICCL noted with concern proposals to widen police powers for example, to allow

warrantless entry to homes which they loudly opposed at the time and were eventually

dropped. Such proposals demonstrated the excessive emphasis on policing that

risked fundamental rights to enforce public health measures.

ICCL also expressed concern about the removal of a key safeguard when Fixed

Charge Notices were introduced. When punishment required prosecution, there was

a public interest test applied to the decision to prosecute as applied by the Director of

Public Prosecutions (DPP). Fixed Charge Notices removed this requirement of the

public interest test by the DPP and appears to have led to a much wider punishment

and enforcement policy, as can be seen in the increased use of fines since their

introduction.

ICCL raised other concerns about worrying practices by members of An Garda

Síochána. In the first months of the pandemic response, ICCL received complaints

from members of the public about invasive stop and searches beyond the new powers,

including searches of shopping bags.


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5. Restrictions to freedom of assembly and policing of protests Questions were raised about the policing of protests during the pandemic and of the

strategy and approach adopted by An Garda Síochána.

Witnesses stated that there was an uneven approach to the policing of protests and

that situations had arisen where those who attended or organised protests that were

small, socially distanced and in compliance with public health guidelines still received

fixed-penalty fines for their attendance at these events. They informed the Committee

that other high-profile events did not result in fixed-penalty charges being given to

attendees and that this inconsistent approach to policing events threatened to

undermine social solidarity and feed public distrust.

Members also raised questions on this subject and suggested that it had appeared to

them as if protests with far-right groups had not been policed as strictly as protests

with other groups.

ICCL called for protests to be protected as special events given their importance to a

functioning democracy. They called for special guidelines to be issued for ‘pandemic

safe protests’ and highlighted cases in other jurisdictions that found blanket bans on

protests to be unconstitutional.

In response, the Garda representative bodies outlined the approach adopted by the

Gardaí when policing protests.

Witnesses informed the Committee that Gardaí had asked people not to attend or

organise any large gatherings in line with public health advice, and that Garda

management sought to engage with the groups planning protests in advance of the

event where possible, in order to advise them of their responsibilities regarding

protests. However, An Garda Síochána had no role in approving protests and their

role was to protect public safety during protests and prevent or investigate any

offences that occurred during protests.

In addition, risk assessments were undertaken in advance of any protest and a

continuous risk assessment methodology was applied throughout the duration of the


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5. Restrictions to freedom of assembly and policing of protests Questions were raised about the policing of protests during the pandemic and of the

strategy and approach adopted by An Garda Síochána.

Witnesses stated that there was an uneven approach to the policing of protests and

that situations had arisen where those who attended or organised protests that were

small, socially distanced and in compliance with public health guidelines still received

fixed-penalty fines for their attendance at these events. They informed the Committee

that other high-profile events did not result in fixed-penalty charges being given to

attendees and that this inconsistent approach to policing events threatened to

undermine social solidarity and feed public distrust.

Members also raised questions on this subject and suggested that it had appeared to

them as if protests with far-right groups had not been policed as strictly as protests

with other groups.

ICCL called for protests to be protected as special events given their importance to a

functioning democracy. They called for special guidelines to be issued for ‘pandemic

safe protests’ and highlighted cases in other jurisdictions that found blanket bans on

protests to be unconstitutional.

In response, the Garda representative bodies outlined the approach adopted by the

Gardaí when policing protests.

Witnesses informed the Committee that Gardaí had asked people not to attend or

organise any large gatherings in line with public health advice, and that Garda

management sought to engage with the groups planning protests in advance of the

event where possible, in order to advise them of their responsibilities regarding

protests. However, An Garda Síochána had no role in approving protests and their

role was to protect public safety during protests and prevent or investigate any

offences that occurred during protests.

In addition, risk assessments were undertaken in advance of any protest and a

continuous risk assessment methodology was applied throughout the duration of the


Page 25 of 51

protests. These assessments take account of the location of the protest, the evolving

nature of the protest and the available intelligence surrounding the protest.

Witnesses outlined to the Committee that policing protests involved reacting

appropriately to an evolving and dynamic situation and often time-critical decisions

needed to be made in this regard, with the tactical commander on the ground in charge

of such decisions. Depending on the size of the protest and the number in attendance,

other operational commanders were made available at strategic locations to assist in

monitoring protests.

Witnesses highlighted that the Garda response to protests was proportionate and was

based on the Garda decision-making model. This model aims to provide for a decision-

making process where Gardaí must justify the reasons for their actions and ensure

their decisions comply with the fundamental principles of legality, necessity,

proportionality and accountability, and are applied in a non-discriminatory manner.

Furthermore, the policing strategy for protests revolved around a minimum direction

and minimum use of forceful engagement with protestors. Any Garda activity at events

was in line with the graduated policing response and any forceful engagement was

always used as a last resort after direction was received from the tactical commander.

The Garda representative bodies provided an insight to the Committee of the

experience of their members when policing protests during the pandemic. In particular,

the protest on 27th February 2021 was used an example of a situation where the

balance between the legitimate right of people to engage in protest and the

requirement to police such protests was challenged by the hostile and dangerous

environment that occurred. Of particular concern was an incident where a missile was

deliberately fired at Garda forces.

Garda witnesses pointed out to the Committee that when other public order incidences

arose on recent occasions, Garda members received criticism for appearing in riot

gear, despite the fact that Garda members required this equipment to protect

themselves where missiles and bottles were being thrown at them.


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6. Continuing curtailment of civil liberties and the renewal of emergency restrictions

Members and witnesses also discussed the continued existence of restrictions despite

the improving public health outlook.

Members pointed out that outdoor sports and parkrun events were still not allowed to

take place despite the fact that other countries have restarted these events and they

raised questions over the lack of evidence to prove that these events are unsafe.

Questions were also raised regarding the renewal of emergency restrictions. The

IHREC stated its opposition to the automatic renewal of this type of emergency

legislation for long periods of time, arguing that the renewal of emergency legislation

in May 2021 had been granted for too long a period.

The IHREC told the Committee that emergency legislation should be constantly

reviewed to ensure that it remains necessary and proportionate and should be

repealed the moment it no longer fulfils this criterion. It should be stressed that an

emergency is for a limited period of time only and a ‘sunset clause’ should be included

in emergency legislation to ensure a mandatory point at which any powers included in

this legislation would lapse.

If these provisions are not made to maintain accountability over emergency powers,

there is a risk these powers will be transferred into the normal system and become

accepted.

The IHREC informed the Committee that there will be other emergency situations in

future and it is important to learn the lessons from this pandemic situation so that

appropriate procedures will be taken in future and that human rights considerations

will be protected during a period of similar emergency decision-making.

In response, Members highlighted that in most or all cases, emergency legislation

during the pandemic contained ‘sunset clauses’. They highlighted that in these cases,

motions of the Dáil and Seanad were required to renew such provisions, which would

otherwise lapse automatically once the expiration date as set in such ‘sunset clause’

was reached.


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6. Continuing curtailment of civil liberties and the renewal of emergency restrictions

Members and witnesses also discussed the continued existence of restrictions despite

the improving public health outlook.

Members pointed out that outdoor sports and parkrun events were still not allowed to

take place despite the fact that other countries have restarted these events and they

raised questions over the lack of evidence to prove that these events are unsafe.

Questions were also raised regarding the renewal of emergency restrictions. The

IHREC stated its opposition to the automatic renewal of this type of emergency

legislation for long periods of time, arguing that the renewal of emergency legislation

in May 2021 had been granted for too long a period.

The IHREC told the Committee that emergency legislation should be constantly

reviewed to ensure that it remains necessary and proportionate and should be

repealed the moment it no longer fulfils this criterion. It should be stressed that an

emergency is for a limited period of time only and a ‘sunset clause’ should be included

in emergency legislation to ensure a mandatory point at which any powers included in

this legislation would lapse.

If these provisions are not made to maintain accountability over emergency powers,

there is a risk these powers will be transferred into the normal system and become

accepted.

The IHREC informed the Committee that there will be other emergency situations in

future and it is important to learn the lessons from this pandemic situation so that

appropriate procedures will be taken in future and that human rights considerations

will be protected during a period of similar emergency decision-making.

In response, Members highlighted that in most or all cases, emergency legislation

during the pandemic contained ‘sunset clauses’. They highlighted that in these cases,

motions of the Dáil and Seanad were required to renew such provisions, which would

otherwise lapse automatically once the expiration date as set in such ‘sunset clause’

was reached.


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7. Democratic oversight and accountability of the supervisory functions of the Oireachtas in making regulations

Witnesses argued that democratic oversight, accountability and transparency of the

decision-making processes of the Oireachtas during the COVID-19 pandemic were

insufficient.

They suggested several areas where this could have been improved. Firstly, they

argued that there was a lack of human rights and equality expertise in decision-making

undertaken by the Government. They argued that the parliamentary decision-making

process during the pandemic was rendered unclear due to shifting relationships

between the Government and the National Public Health Emergency Team (NPHET).

While NPHET had had a human rights subcommittee this was discontinued, therefore

it was unclear whether human rights concerns were considered at all when drafting

regulations.

They recommended that a dedicated Oireachtas Committee on human rights, equality

and diversity be established to ensure that parliamentary oversight would take into

account the human rights implications of legislation and regulations.

Members themselves were critical of the speed at which some legislation had been

passed and were cognisant of the fact that this had resulted in legislation like the

Health (Amendment) Bill 2020 being passed quickly in October 2020 and resulting in

a piece of legislation that was difficult to enforce. They conceded that while it was

preferable that situations with urgent legislation being rushed would not occur,

sometimes this is unavoidable.

Members also mentioned a Private Members’ Bill, the Health (Parliamentary Oversight

of Certain Instruments Relating to COVID-19) Bill 2021, currently before Dáil Éireann

which requires Ministers to lay regulations before the Houses for two weeks to allow

Members to consider it in further detail.

Some argued that while there are good intentions behind this PMB, in reality enacting

such legislation would limit the ability of the Government to react in a timely fashion,

particularly considering that passing regulations in the first instance can be a slow

process and involves proposals going through Departments and the Cabinet.


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In addition, it was accepted that the significant raft of legislation that was published

had been difficult even for those with a legal background to keep abreast of, let alone

for the Gardaí who enforced them or for members of the public to try to understand

what exactly the regulations involved.

It was re-iterated that the Government should always try to provide as much clarity as

possible to members of the public to assist them in understanding what was expected

of them in following regulations and to be clear about the rationale behind introducing

them.


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In addition, it was accepted that the significant raft of legislation that was published

had been difficult even for those with a legal background to keep abreast of, let alone

for the Gardaí who enforced them or for members of the public to try to understand

what exactly the regulations involved.

It was re-iterated that the Government should always try to provide as much clarity as

possible to members of the public to assist them in understanding what was expected

of them in following regulations and to be clear about the rationale behind introducing

them.


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CHAPTER 3 – Summary of Written Submissions

The Committee received submissions from by the deadline of 28 May 2021.

This briefing will focus on key issues identified in the written submissions from:

➢ ICCL

➢ IHREC

➢ Office of the Garda Commissioner

➢ AGSI

➢ Professor Pete Lunn

The Committee also received written submissions from the following which are

included at Appendix 2.

➢ Dr. Eoin Drea, Senior Research Officer, Wilfried Martens Centre for European

Studies.

➢ Professor Pete Lunn, Behavioural Research Unit, ERSI.

➢ Professor Colin Scott, Principal of UCD College of Social Sciences and Law

➢ Irish Human Rights and Equality Commission

➢ Association of Garda Sergeants and Inspectors (AGSI)

➢ The Policing Authority

➢ Irish Council for Civil Liberties (ICCL)

➢ Office of the Garda Commissioner, Garda Headquarters

These submissions highlighted in particular, the resourcing and training of An Garda

Síochána regarding the implementation of public health restrictions, the lack of

oversight and accountability of the Oireachtas when making public health regulations

and the proportionality and necessity of imposing restrictions to protect public health,

balanced against the curtailment of the fundamental rights of citizens.


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1. Whether restrictions were necessary and proportionate

When applying restrictions during the pandemic stakeholders identified several

principles by which such restrictions should comply. These include human rights and

equality principles, such as necessity, proportionality and non-discrimination.

Restrictions should also comply with principles of legality and accountability, they must

be in pursuit of a legitimate aim and every restriction must be the most minimal

possible to meet that aim. Regarding the implementation of restrictions to limit the spread of COVID-19 during

the first wave, Professor Pete Lunn stated that he believes the early implementation

of restrictions in Ireland in March 2020 and the severity of these restrictions appeared

to significantly prevent the loss of life experienced in many other western European

countries during this period. However, in stating this he acknowledged that the burden

of COVID-19 restrictions did not fall evenly on the population, with groups like young

adults, families with young children, families with children who have special needs,

those who work in travel, tourism or hospitality among those more severely impacted.

Several stakeholders pointed out the difficulty for policy-makers in ensuring that

policies were consistently ‘necessary and proportionate’ due to the fast-changing

nature of the growth of COVID-19 cases in Ireland. This meant that restrictions that

were recently imposed became too lax or too strict in a short period of time as the

number of cases increased and decreased respectively. This was particularly the case

after the first wave of the pandemic subsided, when it became harder for the political

system to respond with the necessary flexibility and more difficult for policymakers to

ascertain what level of restrictions were proportionate, as the almost universal support

in favour of implementing restrictions to ‘flatten the curve’ dissipated.

Pete Lunn highlighted that in the political system, where it is expected that politicians

and policymakers will adopt a firm stance on a particular topic and make policy

decisions accordingly, the inherent uncertainty of COVID-19 challenged this approach.

Similarly, he highlights the perceived lack of flexibility in July and August 2020 as being

a costly error, as public opinion feared a second wave of infection but the Government


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1. Whether restrictions were necessary and proportionate

When applying restrictions during the pandemic stakeholders identified several

principles by which such restrictions should comply. These include human rights and

equality principles, such as necessity, proportionality and non-discrimination.

Restrictions should also comply with principles of legality and accountability, they must

be in pursuit of a legitimate aim and every restriction must be the most minimal

possible to meet that aim. Regarding the implementation of restrictions to limit the spread of COVID-19 during

the first wave, Professor Pete Lunn stated that he believes the early implementation

of restrictions in Ireland in March 2020 and the severity of these restrictions appeared

to significantly prevent the loss of life experienced in many other western European

countries during this period. However, in stating this he acknowledged that the burden

of COVID-19 restrictions did not fall evenly on the population, with groups like young

adults, families with young children, families with children who have special needs,

those who work in travel, tourism or hospitality among those more severely impacted.

Several stakeholders pointed out the difficulty for policy-makers in ensuring that

policies were consistently ‘necessary and proportionate’ due to the fast-changing

nature of the growth of COVID-19 cases in Ireland. This meant that restrictions that

were recently imposed became too lax or too strict in a short period of time as the

number of cases increased and decreased respectively. This was particularly the case

after the first wave of the pandemic subsided, when it became harder for the political

system to respond with the necessary flexibility and more difficult for policymakers to

ascertain what level of restrictions were proportionate, as the almost universal support

in favour of implementing restrictions to ‘flatten the curve’ dissipated.

Pete Lunn highlighted that in the political system, where it is expected that politicians

and policymakers will adopt a firm stance on a particular topic and make policy

decisions accordingly, the inherent uncertainty of COVID-19 challenged this approach.

Similarly, he highlights the perceived lack of flexibility in July and August 2020 as being

a costly error, as public opinion feared a second wave of infection but the Government


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failed to act to prevent this due to entrenched positions that had now developed in

favour of and against re-introducing restrictions. This divide was also mirrored in the

public due to the different tolerance that individuals have for risk, which meant there

was increasing disagreement over those who believed that priority should be given to

placing restrictions on businesses and freedoms to protect public health and those

who believed in the greater importance of protecting civil liberties over imposing public

health regulations.

However, he believes that the results of the weekly Amárach Tracking Surveys and

other surveys undertaken by the Behavioural Research Unit (BRU) of the Economic

and Social Research Institute (ERSI) to monitor support for public health measures

are very significant and indicative of the strong and consistent nature of public support

for some level of restrictions throughout the pandemic. The responses indicated that

for nearly all of 2020 and early 2021, the general public, on average, expected public

health restrictions would remain in place for months to come and significantly, believed

that the restrictions were either at about the right level or too weak. Additionally, the

majority surveyed would have preferred, on average, that restrictions be more

restrictive rather than less. For example, from June 2020 to February 2021, a larger

proportion of the population believed that Ireland was trying to return to normal too

quickly than believed it was doing so too slowly.

Disproportionate effect of regulations

Despite the universal acknowledgement of the need to protect public health,

stakeholders underlined how the restrictions impacted on sectors of society differently.

They outlined that the groups and communities that were disadvantaged prior to

COVID-19 were the ones that were most severely affected by the pandemic and

restrictions. These groups include: (i) older people; (ii) women; (iii) ethnic minorities

including residents of Direct Provision and members of the Roma and Traveller

community; (iv) people with disabilities; and (v) people who identify as LGBTI+.

To aid these disadvantaged groups, stakeholders recommended that the funding to

NGOs that support these vulnerable groups be increased. They also recommended


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that the Government commits to continue supporting these groups in the aftermath of

COVID-19 by pursuing the implementation of published strategies and

recommendations like the National Traveller and Roma Inclusion Strategy, the

recommendations from the Expert Panel on Nursing Homes and MRCI’s

recommendations to improve migrant workers’ rights.

ICCL also recommends carrying out a regular human rights impact assessment on the

impact of the emergency situation and restrictions on these at-risk groups in order to

collect accurate data and to guide Government in taking appropriate and sufficient

measures to mitigate the negative impacts of COVID-19 and State restrictions.

Disproportionate enforcement of regulations

The IHREC also outlined the possibility that the application of police enforcement

during the pandemic disproportionately affected more vulnerable and disadvantaged

groups including young people, ethnic minorities and members of the Roma and

Travelling community. While they lacked exact figures on the exercise of Garda

powers under emergency legislation, they argued for these to figures to be released,

so that policymakers can understand how the legislation is affecting these groups.

These figures would also demonstrate transparency by ensuring that enforcement of

regulations during the pandemic is being undertaking in a non-discriminatory manner

in regard to minority groups.


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that the Government commits to continue supporting these groups in the aftermath of

COVID-19 by pursuing the implementation of published strategies and

recommendations like the National Traveller and Roma Inclusion Strategy, the

recommendations from the Expert Panel on Nursing Homes and MRCI’s

recommendations to improve migrant workers’ rights.

ICCL also recommends carrying out a regular human rights impact assessment on the

impact of the emergency situation and restrictions on these at-risk groups in order to

collect accurate data and to guide Government in taking appropriate and sufficient

measures to mitigate the negative impacts of COVID-19 and State restrictions.

Disproportionate enforcement of regulations

The IHREC also outlined the possibility that the application of police enforcement

during the pandemic disproportionately affected more vulnerable and disadvantaged

groups including young people, ethnic minorities and members of the Roma and

Travelling community. While they lacked exact figures on the exercise of Garda

powers under emergency legislation, they argued for these to figures to be released,

so that policymakers can understand how the legislation is affecting these groups.

These figures would also demonstrate transparency by ensuring that enforcement of

regulations during the pandemic is being undertaking in a non-discriminatory manner

in regard to minority groups.


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2. Balance between upholding fundamental rights of citizens while imposing necessary restrictions

ICCL and the IHREC both acknowledged the need to introduce public health

regulations to prevent the spread of COVID-19 and stated that in circumstances such

as a pandemic, it is permissible for these regulations to breach what are otherwise

seen as inviolable human rights in order to protect public health. However, they

highlighted several areas throughout the pandemic where the implementation of

regulations did not adequately uphold the fundamental rights of citizens.

Among the fundamental rights that ICCL believe were disproportionately restricted

during COVID-19 include the right to protest (outlined in Point 3) and the right to

worship, which was not protected under the exceptions allowing gatherings, despite

exceptions being made for weddings and funerals where limited numbers attended.

They argue that both of these fundamental rights must be explicitly protected and that

the Government must advise citizens on how to undertake such activities safely. They

also argue against introducing blanket bans on rights, as such bans tend to be

disproportionate by nature.

Regarding restrictions encroaching on private and family life, it was recommended that

these should maintain proportionality and that any negative impact on certain groups,

such as people living alone, vulnerable people, and caregivers, should be addressed

from the outset of the emergency, through providing support bubbles and childcare

pairing arrangements.

ICCL also raised several concerns regarding the EU ‘Digital Green Certificate’ or travel

passport and its compliance with privacy and data protection rights. They made

several recommendations as to necessary safeguards that should be incorporated into

this system including, but not limited to: that this certificate should publish its system’s

specifications to allow for independent scrutiny; that these certs must not conflict with

GDPR; that certs should only require a limited amount of user data and that a central

database of all user data should not be compiled; and that a clear review process and

‘sunset clause’ be applied, after which citizens should no longer have to present health


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documents to exercise their right to free movement and their related data must no

longer be used.

Finally, the IHREC argued that the Government was not clear and transparent enough

in its communication relating to COVID-19 and stressed that they must clearly

distinguish the boundary between public health guidance and legal requirements. This

disparity caused confusion among the population and led to some older people

believing that they were legally obliged to cocoon under regulations instead of it being

recommended under public health advice.


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documents to exercise their right to free movement and their related data must no

longer be used.

Finally, the IHREC argued that the Government was not clear and transparent enough

in its communication relating to COVID-19 and stressed that they must clearly

distinguish the boundary between public health guidance and legal requirements. This

disparity caused confusion among the population and led to some older people

believing that they were legally obliged to cocoon under regulations instead of it being

recommended under public health advice.


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3. Restrictions to freedom of movement and freedom of assembly

Some submissions argued that restrictions on free movement should have taken a

more targeted approach, distinguishing between geographical areas of low risk and

areas with a higher risk to public health, so that the Government could be guided on

which exact areas needed to implement travel restrictions rather than imposing blanket

restrictions.

Pete Lunn argued that while curtailing freedom of movement was a necessary decision

to protect public health due to the nature of how COVID-19 transmits, he believes that

there could have been greater freedom at times during the pandemic to allow people

to meet outdoors. This would have decreased the amount of people meeting indoors,

which is a riskier environment for transmission. However, he acknowledges that it is

easier to recommend this with the benefit of hindsight.

ICCL pointed out several areas of the mandatory hotel quarantine system where they

believe that human rights standards are not being upheld satisfactorily. They highlight

a failure in the review and appeal process and question the potentially inconsistent

and discriminatory approach being used to identify which states qualify for inclusion

on the mandatory hotel quarantine list. They recommend that these areas be reviewed

and reformed and that this system be ended as soon as public health advice permits.

Regarding protests, the Garda Commissioner stated that while they asked the public

not to attend such events due to public health advice, the organisation always

facilitated peaceful protests and adopted a graduated response to policing such

protests, even in situations where groups involved were not willing to engage with the

Gardaí in advance of events. While the AGSI stressed that they are conscious of the

Constitutional rights of the public, they believe that the protest that occurred on 27th

February 2021 severely tested the policing of the protest and that the firing of a missile

at the Gardaí demonstrated the hostile environment that can develop during such

protests.


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ICCL, however, believed that the fundamental right to protest was not properly

facilitated during COVID-19 and that there was an inconsistency in policing of

demonstrations due to lack of clarity and clear policy by An Garda Síochána on what

protesting was permissible. This allowed certain protests to be facilitated where others

were shut down, for example, the inconsistent approach to policing protests

undertaken by Debenhams workers, where Debenhams protesters in Cork were

facilitated and in the same week Debenhams protesters in Dublin were dispersed.

They argued that small, safe protests should be allowed as a reasonable excuse to

gather under the health regulations and that clear guidelines should have been issued

by Government on how to organise and participate in such protests, which could then

distinguish these safe and complaint demonstrations from those that flagrantly breach

public health regulations and may need to be shut down. An Garda Síochána should

similarly publish guidelines on how protests are policed during the pandemic to ensure

consistency and that a human rights approach is taken.


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ICCL, however, believed that the fundamental right to protest was not properly

facilitated during COVID-19 and that there was an inconsistency in policing of

demonstrations due to lack of clarity and clear policy by An Garda Síochána on what

protesting was permissible. This allowed certain protests to be facilitated where others

were shut down, for example, the inconsistent approach to policing protests

undertaken by Debenhams workers, where Debenhams protesters in Cork were

facilitated and in the same week Debenhams protesters in Dublin were dispersed.

They argued that small, safe protests should be allowed as a reasonable excuse to

gather under the health regulations and that clear guidelines should have been issued

by Government on how to organise and participate in such protests, which could then

distinguish these safe and complaint demonstrations from those that flagrantly breach

public health regulations and may need to be shut down. An Garda Síochána should

similarly publish guidelines on how protests are policed during the pandemic to ensure

consistency and that a human rights approach is taken.


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4. Engagement with the public to ensure support for introduction of regulations

Many stakeholders highlighted the difficulty of undertaking consultations to gauge

public support and perspectives on the introduction of public health regulations, due

to the need to take urgent and decisive action to prevent the incidence of COVID-19

and of infection and morality rates from rising.

Pete Lunn argued that at no stage during the pandemic was there was sufficient time

to engage in formal consultation processes with the public regarding the

implementation of restrictions and lockdowns. He believes this was unavoidable due

to the fast-changing nature of COVID-19, as the evidence upon which the

implementation of restrictions was based was only made available to relevant

stakeholders and decision-makers a few days beforehand.

However, as mentioned previously, he stressed that ongoing surveys of the population

during COVID-19 demonstrated that an overwhelming majority of the Irish population

supported the public health restrictions that were introduced. On average, many

people would have preferred regulations to have been stricter rather than less strict.

He believes that, to some degree, such surveys can count as a form of public

consultation, as they have been designed to gauge the public response to different

restrictions and the impact it will have on their lives, with the purpose of better

informing decision-making to minimise the negative impact of the necessary

restrictions on citizens.

He also pointed out that this research has demonstrated that people who viewed the

public health restrictions as being coherent rather than contradictory were consistently

more likely to comply with public health guidance. This underlines the need for the

Government to publish clear and consistent communication and guidelines in future to

best encourage the public to comply with them.

Notwithstanding this, IHREC highlighted the lack of participation in the decision-

making process of groups that were most likely to be impacted by the regulations,

including people with disabilities, older people, members of the Travelling Community


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and those living in Direct Provision. They stated that provisions should have been

made at the earliest stages of the pandemic to consult with these groups that were

most at risk, to ensure sufficient communication and information was provided to them

which could have addressed potential issues that may have arisen for these groups

when restrictions were implemented. Such communication materials and information

would need to be adapted to the specific needs of certain audiences, including

children, persons with disabilities and minority ethnic groups.


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and those living in Direct Provision. They stated that provisions should have been

made at the earliest stages of the pandemic to consult with these groups that were

most at risk, to ensure sufficient communication and information was provided to them

which could have addressed potential issues that may have arisen for these groups

when restrictions were implemented. Such communication materials and information

would need to be adapted to the specific needs of certain audiences, including

children, persons with disabilities and minority ethnic groups.


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5. Endpoint and ‘sunset clauses’ of restrictions

Pete Lunn pointed out that while ‘sunset clauses’ are generally good when regulations

of this nature are implemented, he believes that the nature of COVID-19 means they

can complicate matters, as the provisional dates laid down to remove restrictions can

generate false hopes, expectations or can be used by lobbying groups to try and

achieve their desired aims. If such dates are not met, they can also be experienced

as a form of loss, and he believes this is not helpful when individuals are trying to cope

with the inherent uncertainty of the pandemic situation.

ICCL argued that all emergency legislation must have a ‘sunset clauses’ and that when

the expiration date for these clauses approaches and where it is intended that the

legislation will be renewed, sufficient time must be provided for an Oireachtas debate

and a human rights review of the legislation to occur.

In their supplementary report Ireland’s Emergency Powers during the COVID-19

Pandemic, from February 2020, the IHREC pointed out that it would be better if shorter

extensions had been sought when extending the ‘sunset clause’ for the emergency

legislation. They suggested that three months, rather than seven months would

provide a more balanced extension period, allowing for necessary restrictions to be

implemented while providing for more prompt democratic oversight.


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6. Resourcing and training of An Garda Síochána to enforce regulations

The AGSI and the Garda Commissioner highlighted that the Garda approach to

policing the pandemic has utilised a human rights-based approach, through adoption

of a graduated policing response, which aligned with the Garda tradition of ‘policing

by consent’. This approach has been welcomed by communities according to external

surveys undertaken on the matter and was best demonstrated by their use of the 4E

strategy when engaging with members of the public. This involved firstly engaging with

individuals, explaining the regulations to them, then encouraging them to comply with

regulations, and as a last resort enforcing them to comply with regulations, only where

necessary and proportionate. When applying the 4E strategy, members were

encouraged to be cognisant of the Garda Decision Making Model, which aims to

provide for a decision making process that will enable Gardaí to determine, explain

and justify the reasons for their decisions or actions. This model outlines that decision

making must also comply with the fundamental principles of legality, necessity,

proportionality and accountability, and be applied in a non-discriminatory manner.

In terms of implementing restrictions and regulations, submissions highlighted that

several of the tasks that Gardaí undertook during COVID-19 were straightforward for

members to understand and implement, for example undertaking static checkpoints

on designated roads. Elements of the community policing in particular, such as

supporting the elderly and the vulnerable, are also embedded in the ethos and culture

of the Gardaí.

However, stakeholders highlighted that the scale at which regulations and Statutory

Instruments were introduced and changed meant that there was not sufficient time to

provide ‘in-service’ training to Garda members and staff as there had been previously.

The Garda Commissioner stated that it was necessary to ensure that frontline Gardaí

received clear and accurate messaging regarding complex COVID-19 regulations and

an internal communications plan was designed to disseminate relevant information.

Daily email updates were the key channel through which this happened and these

emails were sent directly to all members, included graphics and images and adopted

an informal tone, stating relevant information clearly and simply. In addition, a Digital

Learning Hub was established by the Garda College in May 2020 to provide a number


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6. Resourcing and training of An Garda Síochána to enforce regulations

The AGSI and the Garda Commissioner highlighted that the Garda approach to

policing the pandemic has utilised a human rights-based approach, through adoption

of a graduated policing response, which aligned with the Garda tradition of ‘policing

by consent’. This approach has been welcomed by communities according to external

surveys undertaken on the matter and was best demonstrated by their use of the 4E

strategy when engaging with members of the public. This involved firstly engaging with

individuals, explaining the regulations to them, then encouraging them to comply with

regulations, and as a last resort enforcing them to comply with regulations, only where

necessary and proportionate. When applying the 4E strategy, members were

encouraged to be cognisant of the Garda Decision Making Model, which aims to

provide for a decision making process that will enable Gardaí to determine, explain

and justify the reasons for their decisions or actions. This model outlines that decision

making must also comply with the fundamental principles of legality, necessity,

proportionality and accountability, and be applied in a non-discriminatory manner.

In terms of implementing restrictions and regulations, submissions highlighted that

several of the tasks that Gardaí undertook during COVID-19 were straightforward for

members to understand and implement, for example undertaking static checkpoints

on designated roads. Elements of the community policing in particular, such as

supporting the elderly and the vulnerable, are also embedded in the ethos and culture

of the Gardaí.

However, stakeholders highlighted that the scale at which regulations and Statutory

Instruments were introduced and changed meant that there was not sufficient time to

provide ‘in-service’ training to Garda members and staff as there had been previously.

The Garda Commissioner stated that it was necessary to ensure that frontline Gardaí

received clear and accurate messaging regarding complex COVID-19 regulations and

an internal communications plan was designed to disseminate relevant information.

Daily email updates were the key channel through which this happened and these

emails were sent directly to all members, included graphics and images and adopted

an informal tone, stating relevant information clearly and simply. In addition, a Digital

Learning Hub was established by the Garda College in May 2020 to provide a number


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of training seminars and courses via the organisation's on-line Learning Management

System.

However, while AGSI members stated that they received some minor assistance from

An Garda Síochána’s ‘COVID Unit’ on the Online Portal, they believed that this was

not sufficient and felt that a large responsibility was placed on Garda Sergeants and

Inspectors to explain complicated, lengthy regulations to Garda members and to

highlight to them which elements of the regulations were enforceable or not.

Similarly, the AGSI highlighted their concern at hearing particular reports through radio

and media channels which suggested that Gardaí could be tasked with undertaking

actions that could breach the Constitutional rights of citizens and challenge the existing

and well-established Garda powers, such as expecting Gardaí to go into people’s

houses to break up houses parties or to check if they were quarantining after travelling

abroad. However, as the organization must remain non-political, they did not feel that

they could comment on such matters.

The AGSI highlighted that at no point during the COVID-19 pandemic did the

Government engage with Garda Staff Associations. They believe that after the onset

of the pandemic and the initial need for fast decision making and actions, this

continued lack of engagement was a missed opportunity.

The AGSI also highlighted several areas where they felt that Garda members were

not particularly well resourced. This included the lack of PPE and masks available for

Gardaí during the early stages of the pandemic; the lack of priority COVID-19 testing

and of places for Gardaí to isolate when designated as close contacts, which was

particularly acute during Christmas and January 2021 when a significant amount of

the workforce were absent due to COVID-19 related issues; and the lack of vaccination

prioritisation for members working in the mandatory hotel quarantine system,

especially considering that all other personnel working in these facilities were

vaccinated.

Finally, the AGSI stressed the need to highlight to the public the temporary nature of

the regulations and the fact that these were ‘health regulations’ rather than Garda

regulations. They believed that this distinction is important to uphold the model of


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‘policing by consent’ and protect the relationship between the Gardaí and the public,

so that it was made clear to the public that restrictions were only in place to protect

public health and would not be enforced longer than was necessary.

Other submissions highlighted several shortcomings they identified regarding Garda

enforcement during the pandemic.

The potentially disproportionate nature of Garda enforcement against minority groups

was highlighted previously in Point 1. ICCL also believes there has been an over-

reliance on police powers to ensure compliance with public health guidelines and have

instead expressed their preference for an approach recommended by behavioural

psychologists, which focuses on clearer and targeted communication and better

supports for those struggling to comply with restrictions. They believe that the

Community-based policing approach should be prioritised by Gardaí when enforcing

public health regulations and that coercive measures like fines and referrals to the

Director for Public Prosecutions (DPP) should be used as a last resort and in situations

where a high threshold of non-compliance applies, for example regarding repeated

breaches of penal provisions within regulations. Any penalties applied for breaching

restrictions that constitute an interference with rights, (especially Fixed Charge

Notices), should also be proportionate to the aim of protecting public health and to the

harm caused by the particular breach.

In addition, several submissions mentioned the use of anti-spit hoods and the negative

impact these have on human rights. Stakeholders were concerned with the lack of

data in the reporting of the use of anti-spit hoods which prevents reviewing their use

effectively. They argued that anti-spit hoods should not be retained as a use of force

beyond the pandemic, while ICCL recommended that the use of spit-hoods be stopped

immediately, as they violate an individual’s right not to be subjected to inhuman or

degrading treatment or punishment.

However, the AGSI highlighted the particular concern of Garda members who were

spat at with blood and saliva and outlined the significant emotional and physical

distress this caused to them.


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‘policing by consent’ and protect the relationship between the Gardaí and the public,

so that it was made clear to the public that restrictions were only in place to protect

public health and would not be enforced longer than was necessary.

Other submissions highlighted several shortcomings they identified regarding Garda

enforcement during the pandemic.

The potentially disproportionate nature of Garda enforcement against minority groups

was highlighted previously in Point 1. ICCL also believes there has been an over-

reliance on police powers to ensure compliance with public health guidelines and have

instead expressed their preference for an approach recommended by behavioural

psychologists, which focuses on clearer and targeted communication and better

supports for those struggling to comply with restrictions. They believe that the

Community-based policing approach should be prioritised by Gardaí when enforcing

public health regulations and that coercive measures like fines and referrals to the

Director for Public Prosecutions (DPP) should be used as a last resort and in situations

where a high threshold of non-compliance applies, for example regarding repeated

breaches of penal provisions within regulations. Any penalties applied for breaching

restrictions that constitute an interference with rights, (especially Fixed Charge

Notices), should also be proportionate to the aim of protecting public health and to the

harm caused by the particular breach.

In addition, several submissions mentioned the use of anti-spit hoods and the negative

impact these have on human rights. Stakeholders were concerned with the lack of

data in the reporting of the use of anti-spit hoods which prevents reviewing their use

effectively. They argued that anti-spit hoods should not be retained as a use of force

beyond the pandemic, while ICCL recommended that the use of spit-hoods be stopped

immediately, as they violate an individual’s right not to be subjected to inhuman or

degrading treatment or punishment.

However, the AGSI highlighted the particular concern of Garda members who were

spat at with blood and saliva and outlined the significant emotional and physical

distress this caused to them.


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7. Accountability of the supervisory functions of the Oireachtas in making regulations

The IHREC and ICCL believe that the accountability and transparency of the

Oireachtas when introducing and designing emergency legislation in response to

COVID-19 was insufficient. IHREC pointed out that there has been a lack of human

rights and equality expertise in the decision-making structures and in the systems for

parliamentary oversight of decision-making. They underlined how crucial it is to include

this human rights and equality perspective, considering that the regulations introduced

during COVID-19 have curtailed people’s fundamental freedoms more than would ever

have been permissible prior to the pandemic.

The IHREC also pointed out that the relationship between the Government and the

National Public Health Emergency Team (NPHET) when designing legislation

complicated matters, as this process was not transparent and it was difficult to

ascertain where/if human rights concerns were being addressed when designing

legislation. ICCL similarly recommended that the composition of NPHET should be

expanded to possess a broader range of experts, including a human rights expert.

In the context of COVID-19, the IHREC recommended ensuring a human rights

perspective is included through the creation of a dedicated Joint Oireachtas

Committee on Human Rights, Equality and Diversity, whose focus would be on

providing close parliamentary scrutiny of the emergency legislation introduced in

response to COVID-19 and of the equality and human rights implications resulting from

this legislation.

ICCL highlighted that emergency legislation was rushed through the Dáil twice

previously in March and October of 2020 and while they are cognisant of the need for

speedy decision making at the start of the pandemic, they believe that after 15 months

of this situation, that better democratic oversight must be ensured when drafting

emergency regulations.

When drafting, introducing or renewing emergency legislation in the future, ICCL made

several recommendations, as follows:


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(i) Emergency regulations should be published before they come into force;

(ii) That a statutory requirement should be established so that Government would carry

out a meaningful proportionality test when restricting rights. This entails ensuring,

where possible, that all limits on rights are the least restrictive possible to achieve their

objectives and every restriction on rights should be subject to this test;

(iii) The IHREC should be consulted where legislation drafted will infringe human

rights;

(iv) A statutory requirement should be established so that the Oireachtas must

undertake pre-legislative scrutiny over each set of regulations, (except in situations

where the exigency of the public health situation requires an urgent response);

(v) That the ‘affected areas’ provision in the Emergency Legislation be utilised to

ensure a targeted approach to rights restrictions;

(vi) All legislation should include a ‘sunset clause’ and sufficient time should be

provided to discuss this legislation;

(vii) The Oireachtas should approve regulations within a set period of time;

(viii) A statutory requirement should be established to undertake a substantive review

of the exercise of emergency powers;

(ix) That a broad non-discrimination clause is included in all emergency legislation to

ensure government avoids potential discriminatory impacts of the law;

(x) To ensure that emergency legislation does not create overly broad powers for any

State actor.

Finally, transparency and effective communication in decision-making processes

should always be maintained, so that the public understands the grounds for decisions

being made and the evidence supporting different levels of restrictions on rights.


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(i) Emergency regulations should be published before they come into force;

(ii) That a statutory requirement should be established so that Government would carry

out a meaningful proportionality test when restricting rights. This entails ensuring,

where possible, that all limits on rights are the least restrictive possible to achieve their

objectives and every restriction on rights should be subject to this test;

(iii) The IHREC should be consulted where legislation drafted will infringe human

rights;

(iv) A statutory requirement should be established so that the Oireachtas must

undertake pre-legislative scrutiny over each set of regulations, (except in situations

where the exigency of the public health situation requires an urgent response);

(v) That the ‘affected areas’ provision in the Emergency Legislation be utilised to

ensure a targeted approach to rights restrictions;

(vi) All legislation should include a ‘sunset clause’ and sufficient time should be

provided to discuss this legislation;

(vii) The Oireachtas should approve regulations within a set period of time;

(viii) A statutory requirement should be established to undertake a substantive review

of the exercise of emergency powers;

(ix) That a broad non-discrimination clause is included in all emergency legislation to

ensure government avoids potential discriminatory impacts of the law;

(x) To ensure that emergency legislation does not create overly broad powers for any

State actor.

Finally, transparency and effective communication in decision-making processes

should always be maintained, so that the public understands the grounds for decisions

being made and the evidence supporting different levels of restrictions on rights.


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APPENDICES

APPENDIX 1– ORDERS OF REFERENCE OF THE COMMITTEE

Functions of Departmental Select Committees.

95. (1) The Dáil may appoint a Departmental Select Committee to consider

and, unless otherwise provided for in these Standing Orders or by order, to

report to the Dáil on any matter relating to—

(a) legislation, policy, governance, expenditure and administration

of―

(i) a Government Department, and (ii) State bodies within the responsibility of such Department,

and (b) the performance of a non-State body in relation to an agreement for the provision of services that it has entered into with any such

Government Department or State body.

(2) A Select Committee appointed pursuant to this Standing Order shall also consider such other matters which―

(a) stand referred to the Committee by virtue of these Standing Orders or statute law, or

(b) shall be referred to the Committee by order of the Dáil.

(3) The principal purpose of Committee consideration of matters of policy,

governance, expenditure and administration under paragraph (1) shall be―

(a) for the accountability of the relevant Minister or Minister of State,

and

(b) to assess the performance of the relevant Government

Department or of a State body within the responsibility of the

relevant Department, in delivering public services while achieving

intended outcomes, including value for money.


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(4) A Select Committee appointed pursuant to this Standing Order shall not

consider any matter relating to accounts audited by, or reports of, the

Comptroller and Auditor General unless the Committee of Public Accounts―

(a) consents to such consideration, or

(b) has reported on such accounts or reports.

(5) A Select Committee appointed pursuant to this Standing Order may be

joined with a Select Committee appointed by Seanad Éireann to be and act

as a Joint Committee for the purposes of paragraph (1) and such other

purposes as may be specified in these Standing Orders or by order of the

Dáil: provided that the Joint Committee shall not consider―

(a) the Committee Stage of a Bill,

(b) Estimates for Public Services, or

(c) a proposal contained in a motion for the approval of an

international agreement involving a charge upon public funds referred to the Committee by order of the Dáil.

(6) Any report that the Joint Committee proposes to make shall, on adoption by the Joint Committee, be made to both Houses of the

Oireachtas. (7) The Cathaoirleach of the Select Committee appointed pursuant to this Standing Order shall also be Cathaoirleach of the Joint Committee.

(8) Where a Select Committee proposes to consider―

(a) EU draft legislative acts standing referred to the Select

Committee under Standing Order 133, including the compliance of

such acts with the principle of subsidiarity,

(b) other proposals for EU legislation and related policy issues, including programmes and guidelines prepared by the European

Commission as a basis of possible legislative action,

(c) non-legislative documents published by any EU institution in

relation to EU policy matters, or

(d) matters listed for consideration on the agenda for meetings of

the relevant Council (of Ministers) of the European Union and the


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(4) A Select Committee appointed pursuant to this Standing Order shall not

consider any matter relating to accounts audited by, or reports of, the

Comptroller and Auditor General unless the Committee of Public Accounts―

(a) consents to such consideration, or

(b) has reported on such accounts or reports.

(5) A Select Committee appointed pursuant to this Standing Order may be

joined with a Select Committee appointed by Seanad Éireann to be and act as a Joint Committee for the purposes of paragraph (1) and such other

purposes as may be specified in these Standing Orders or by order of the

Dáil: provided that the Joint Committee shall not consider―

(a) the Committee Stage of a Bill,

(b) Estimates for Public Services, or

(c) a proposal contained in a motion for the approval of an

international agreement involving a charge upon public funds referred to the Committee by order of the Dáil.

(6) Any report that the Joint Committee proposes to make shall, on

adoption by the Joint Committee, be made to both Houses of the

Oireachtas.

(7) The Cathaoirleach of the Select Committee appointed pursuant to this Standing Order shall also be Cathaoirleach of the Joint Committee.

(8) Where a Select Committee proposes to consider―

(a) EU draft legislative acts standing referred to the Select Committee under Standing Order 133, including the compliance of

such acts with the principle of subsidiarity,

(b) other proposals for EU legislation and related policy issues,

including programmes and guidelines prepared by the European

Commission as a basis of possible legislative action,

(c) non-legislative documents published by any EU institution in

relation to EU policy matters, or

(d) matters listed for consideration on the agenda for meetings of

the relevant Council (of Ministers) of the European Union and the


Page 47 of 51

outcome of such meetings, the following may be notified

accordingly and shall have the right to attend and take part in such

consideration without having a right to move motions or

amendments or the right to vote:

(i) members of the European Parliament elected from

constituencies in Ireland,

(ii) members of the Irish delegation to the Parliamentary

Assembly of the Council of Europe, and

(iii) at the invitation of the Committee, other members of the

European Parliament.

(9) A Select Committee appointed pursuant to this Standing Order may, in

respect of any Ombudsman charged with oversight of public services within the policy remit of the relevant Department consider—

(a) such motions relating to the appointment of an Ombudsman as may be referred to the Committee, and (b) such Ombudsman reports laid before either or both Houses of the

Oireachtas as the Committee may select: Provided that the provisions of Standing Order 130 apply where the Select Committee has not considered the Ombudsman report, or a portion or portions thereof, within two months (excluding Christmas, Easter or summer recess

periods) of the report being laid before either or both Houses of the Oireachtas.3

3 Retained pending review of the Joint Committee on Public Petitions.


Page 47 of 51


Page 48 of 51

Powers of Select Committees.

96. Unless the Dáil shall otherwise order, a Committee appointed pursuant

to these Standing Orders shall have the following powers:

(1) power to invite and receive oral and written evidence and to print and

publish from time to time―

(a) minutes of such evidence as was heard in public, and

(b) such evidence in writing as the Committee thinks fit;

(2) power to appoint sub-Committees and to refer to such sub-Committees

any matter comprehended by its orders of reference and to delegate any

of its powers to such sub-Committees, including power to report directly to

the Dáil; (3) power to draft recommendations for legislative change and for new legislation; (4) in relation to any statutory instrument, including those laid or laid in draft before either or both Houses of the Oireachtas, power to―

(a) require any Government Department or other instrument-making authority concerned to―

(i) submit a memorandum to the Select Committee explaining the statutory

Instrument, or

(ii) attend a meeting of the Select Committee to explain any

such statutory instrument: Provided that the authority

concerned may decline to attend for reasons given in writing to the Select Committee, which may report thereon to the Dáil,

and

(b) recommend, where it considers that such action is warranted,

that the instrument should be annulled or amended;

(5) power to require that a member of the Government or Minister of State

shall attend before the Select Committee to discuss―

(a) policy, or

(b) proposed primary or secondary legislation (prior to such

legislation being published),


Page 48 of 51


Page 48 of 51

Powers of Select Committees.

96. Unless the Dáil shall otherwise order, a Committee appointed pursuant

to these Standing Orders shall have the following powers:

(1) power to invite and receive oral and written evidence and to print and publish from time to time―

(a) minutes of such evidence as was heard in public, and

(b) such evidence in writing as the Committee thinks fit;

(2) power to appoint sub-Committees and to refer to such sub-Committees any matter comprehended by its orders of reference and to delegate any

of its powers to such sub-Committees, including power to report directly to

the Dáil;

(3) power to draft recommendations for legislative change and for new legislation;

(4) in relation to any statutory instrument, including those laid or laid in draft before either or both Houses of the Oireachtas, power to―

(a) require any Government Department or other instrument-making authority concerned to―

(i) submit a memorandum to the Select Committee explaining

the statutory Instrument, or

(ii) attend a meeting of the Select Committee to explain any such statutory instrument: Provided that the authority

concerned may decline to attend for reasons given in writing to

the Select Committee, which may report thereon to the Dáil, and

(b) recommend, where it considers that such action is warranted, that the instrument should be annulled or amended;


shall attend before the Select Committee to discuss―

(a) policy, or

(b) proposed primary or secondary legislation (prior to such

legislation being published),


Page 49 of 51

for which he or she is officially responsible: Provided that a member of the

Government or Minister of State may decline to attend for stated reasons

given in writing to the Select Committee, which may report thereon to the

Dáil: and provided further that a member of the Government or Minister of

State may request to attend a meeting of the Select Committee to enable

him or her to discuss such policy or proposed legislation;


shall attend before the Select Committee and provide, in private session if

so requested by the attendee, oral briefings in advance of meetings of the

relevant EC Council (of Ministers) of the European Union to enable the

Select Committee to make known its views: Provided that the Committee

may also require such attendance following such meetings;

(7) power to require that the Cathaoirleach designate of a body or agency under the aegis of a Department shall, prior to his or her appointment, attend before the Select Committee to discuss his or her strategic priorities for the role; (8) power to require that a member of the Government or Minister of State who is officially

responsible for the implementation of an Act shall attend before a Select Committee in relation to the consideration of a report under Standing Order 197;

(9) subject to any constraints otherwise prescribed by law, power to require that principal office-holders of a―

(a) State body within the responsibility of a Government Department

or

(b) non-State body which is partly funded by the State,

shall attend meetings of the Select Committee, as appropriate, to

discuss issues for which they are officially responsible: Provided that such an office-holder may decline to attend for stated reasons given

in writing to the Select Committee, which may report thereon to the

Dáil; and

(10) power to―

(a) engage the services of persons with specialist or technical knowledge, to assist it or any of its sub-Committees in considering

particular matters; and


Page 49 of 51


Page 50 of 51

(b) undertake travel;

Provided that the powers under this paragraph are subject to such

recommendations as may be made by the Working Group of Committee

Cathaoirleach under Standing Order 120(4)(a).’

Standing Orders 107 and 109 ‒ Committees meeting in Private

That Standing Order 107 be amended by the addition of the following

paragraph after paragraph (2):

‘(3) Where a Standing, Select or Special Committee, by Order, meets in

private, such meeting may be held on such specified videoconferencing

platform as may be approved and provided by the Houses of the Oireachtas Commission: Provided that minutes of Private Meetings will be proposed and decided at the next (public) Meeting of the Committee.’ That Standing Order 109 (‘Quorum of Select Committees’) be amended by the inclusion in paragraph (4) of ‘or, for the purpose of Standing Order 107(3) taking part in proceedings on such specified videoconferencing

platform as may be approved and provided by the Houses of the Oireachtas Commission,’ after ‘present’, and by the addition of the following proviso: ‘Provided further that references in Standing Orders to being present,

taking part in proceedings, attending and participating shall be construed

accordingly.’.


Page 50 of 51


Page 50 of 51

(b) undertake travel;

Provided that the powers under this paragraph are subject to such

recommendations as may be made by the Working Group of Committee

Cathaoirleach under Standing Order 120(4)(a).’

Standing Orders 107 and 109 ‒ Committees meeting in Private That Standing Order 107 be amended by the addition of the following

paragraph after paragraph (2):

‘(3) Where a Standing, Select or Special Committee, by Order, meets in

private, such meeting may be held on such specified videoconferencing

platform as may be approved and provided by the Houses of the Oireachtas Commission: Provided that minutes of Private Meetings will be proposed

and decided at the next (public) Meeting of the Committee.’

That Standing Order 109 (‘Quorum of Select Committees’) be amended by the inclusion in paragraph (4) of ‘or, for the purpose of Standing Order 107(3) taking part in proceedings on such specified videoconferencing

platform as may be approved and provided by the Houses of the Oireachtas

Commission,’ after ‘present’, and by the addition of the following proviso: ‘Provided further that references in Standing Orders to being present,

taking part in proceedings, attending and participating shall be construed

accordingly.’.


Page 51 of 51

APPENDIX 2 - LIST OF STAKEHOLDERS AND SUBMISSIONS

➢ Dr. Eoin Drea, Senior Research Officer, Wilfried Martens Centre for European

Studies.

➢ Professor Pete Lunn, Behavioural Research Unit, ERSI.

➢ Professor Colin Scott, Principal of UCD College of Social Sciences and Law

➢ Irish Human Rights and Equality Commission

➢ Association of Garda Sergeants and Inspectors (AGSI)

➢ The Policing Authority

➢ Irish Council for Civil Liberties (ICCL)

➢ Office of the Garda Commissioner, Garda Headquarters


Page 51 of 51

Dr. Eoin Drea 22nd May 2021 Senior Research Officer, Wilfried Martens Centre for European Studies, 20 Rue du Commerce, Brussels 1000, Belgium. For the attention of: Alan Guidon (Clerk to the Committee) Joint Committee on Justice, Leinster House, Dublin 2, Ireland. Dear Sir, Many thanks for your invitation (dated 12th May 2021) to make a written submission to the Joint Committee on Justice. I attach (as a separate document) my submission. I would welcome the opportunity to address the Committee in person. Should you require any further information please contact me at [email protected] Yours Sincerely, Dr. Eoin Drea

CL_01

Submission to the Joint Committee on Justice

Civil Liberties during the Covid-19 pandemic

Professor Pete Lunn, Behavioural Research Unit, ESRI

1. Introduction

1.1 I am the head of the Behavioural Research Unit (BRU) at the Economic and Social

Research Institute (ESRI). Although I am a behavioural economist, I have degrees in both

economics and psychology, and I lead a mixed team of eight behavioural economists and

psychologists. Since the beginning of the Covid-19 pandemic, the BRU has undertaken

multiple commissioned research projects for the Department of Health, the National

Public Health Emergency Team (NPHET), the Health Service Executive (HSE), and the

Department of the Taoiseach.1 We continue to undertake such projects, including a

rolling fortnightly study of social activity for the Department of the Taoiseach.

1.2 In March 2020, at the request of the Department of Health, I joined the Behavioural

Change Subgroup of NPHET, which sat regularly until July, after which I became a

member of the Communications and Behavioural Advisory Committee to the Department

of Health, which has met most weeks since October 2020 and continues to do so. At

times, I have also acted as an advisor to the Health Information and Equality Authority

(HIQA), the HSE and the Department of the Taoiseach.

1.3 How best to balance the individual rights of citizens against the common good, or when

to protect a divergent minority from coercion by a mainstream majority, are long-running

philosophical and legal debates. As a behavioural scientist, while I may hold personal

views, I have no professional expertise to offer regrading criteria for striking the

appropriate balance. However, in the context of the pandemic, I can offer insight from

various sources of behavioural research that quantified the extent of public support for

public health restrictions, the degree of compliance with those restrictions, and factors

associated with compliance. Regardless of one’s position on the protection of individual

rights, I believe that this behavioural evidence is important to factor into any judgement

about the appropriate level of restrictions and how these are communicated and

enforced.

1.4 Moreover, the perspective of behavioural science might be useful to make the following

point. Often, when there are concerns about prohibitions on behaviour, the behaviour

concerned has an impact primarily, or only, for the individual undertaking the behaviour

and those close to them. By contrast, Covid-19 is what behavioural scientists call a

“collective action problem”, in which one individual’s behaviour can have large

consequences for other members of society. The best solutions to such collective action

problems require coordinated action through which individuals are willing, or in some

cases coerced, to make sacrifices to pursue a better outcome for all. The BRU’s research

1 A summary of this work and full citations are available in Lunn, P.D. (2021). Coronavirus in Ireland: One Behavioural Scientist’s View. Mind & Society. https://doi.org/10.1007/s11299-021-00275-3

CL_02

https://doi.org/10.1007/s11299-021-00275-3

consistently found that most of the population understood this collective aspect of the

challenge we all faced.

1.5 As an independent researcher commissioned to undertake work for, and to interact with,

multiple organisations involved in the Irish government’s response to the pandemic, I am

also in a position to evaluate how the “system” as a whole responded to the

unprecedented challenges it has faced. On this matter, my observations are more those

of a professional who works in public affairs rather than those of a scientist.

1.6 Given the above, my expertise does not extend to all nine of the questions that the

Committee requested me to cover in this submission. I have no relevant expertise or

experience in relation to the resourcing and training given to members of the Garda

Síochána, the supervisory functions of the Oireachtas, or the European Union Green

Certificate (although in the latter case a role for behavioural science may emerge in due

course). Consequently, this submission confines itself to the six remaining issues.

2. Whether the restrictions were necessary and proportionate and in the common good

2.1 It is (and will continue to be) a matter for epidemiologists to model, quantify and

compare the relative effectiveness across countries of public responses to the threat of

Covid-19. However, with respect to the first wave of the virus that began in March 2020,

at this stage it seems unarguable that the speed with which the Government introduced

public health restrictions and the severity of those restrictions greatly reduced the death

toll and incidence of Covid-19 infection in Ireland, relative to the majority of Western

European nations.

2.2 My team provided evidence directly to the Department of Health that was relevant to the

decisions made.2 This evidence took the form of a review paper circulated within the

Department of Health and directly to the Chief Medical Officer (CMO) on 11 March 2020.

The review covered the effectiveness of interventions designed to improve public

hygiene practices, support people who needed to self-isolate, promotion of public-

spirited behaviour, and communication of risk in an emergency. I do not know whether

our evidence had any impact on the decisions made, although (in my view) most

decisions were aligned with the evidence that we provided.

2.3 In March 2020, in addition to the paper, I attended meetings in the Department of Health

and provided advice. Among many points made, perhaps the most important concerned

evidence about high public tolerance and willingness to cooperate voluntarily in

collective action when facing an emergency, perhaps even for an extended period.

2.4 At this time, some publicity surrounded a view expressed within the UK Government that

the public might only tolerate a few weeks of restrictions and, therefore, that it made

sense to delay introducing public health restrictions until case numbers were higher. My

judgement was that this view, which was attributed to unnamed behavioural scientists

and had no supporting publications, was not based on evidence. With hindsight, I believe

2 Original version posted as ESRI Working Paper 656. Peer-reviewed version published as Lunn, P. D., Belton, C. A., Lavin, C., McGowan, F. P., Timmons, S., & Robertson, D. A. (2020). Using Behavioral Science to help fight the Coronavirus. Journal of Behavioral Public Administration, 3(1), 1-15.

consistently found that most of the population understood this collective aspect of the

challenge we all faced.

1.5 As an independent researcher commissioned to undertake work for, and to interact with,

multiple organisations involved in the Irish government’s response to the pandemic, I am

also in a position to evaluate how the “system” as a whole responded to the

unprecedented challenges it has faced. On this matter, my observations are more those

of a professional who works in public affairs rather than those of a scientist.

1.6 Given the above, my expertise does not extend to all nine of the questions that the

Committee requested me to cover in this submission. I have no relevant expertise or

experience in relation to the resourcing and training given to members of the Garda

Síochána, the supervisory functions of the Oireachtas, or the European Union Green

Certificate (although in the latter case a role for behavioural science may emerge in due

course). Consequently, this submission confines itself to the six remaining issues.

2. Whether the restrictions were necessary and proportionate and in the common good

2.1 It is (and will continue to be) a matter for epidemiologists to model, quantify and

compare the relative effectiveness across countries of public responses to the threat of

Covid-19. However, with respect to the first wave of the virus that began in March 2020,

at this stage it seems unarguable that the speed with which the Government introduced

public health restrictions and the severity of those restrictions greatly reduced the death

toll and incidence of Covid-19 infection in Ireland, relative to the majority of Western

European nations.

2.2 My team provided evidence directly to the Department of Health that was relevant to the

decisions made.2 This evidence took the form of a review paper circulated within the

Department of Health and directly to the Chief Medical Officer (CMO) on 11 March 2020.

The review covered the effectiveness of interventions designed to improve public

hygiene practices, support people who needed to self-isolate, promotion of public-

spirited behaviour, and communication of risk in an emergency. I do not know whether

our evidence had any impact on the decisions made, although (in my view) most

decisions were aligned with the evidence that we provided.

2.3 In March 2020, in addition to the paper, I attended meetings in the Department of Health

and provided advice. Among many points made, perhaps the most important concerned

evidence about high public tolerance and willingness to cooperate voluntarily in

collective action when facing an emergency, perhaps even for an extended period.

2.4 At this time, some publicity surrounded a view expressed within the UK Government that

the public might only tolerate a few weeks of restrictions and, therefore, that it made

sense to delay introducing public health restrictions until case numbers were higher. My

judgement was that this view, which was attributed to unnamed behavioural scientists

and had no supporting publications, was not based on evidence. With hindsight, I believe

2 Original version posted as ESRI Working Paper 656. Peer-reviewed version published as Lunn, P. D., Belton, C. A., Lavin, C., McGowan, F. P., Timmons, S., & Robertson, D. A. (2020). Using Behavioral Science to help fight the Coronavirus. Journal of Behavioral Public Administration, 3(1), 1-15.

that this view within the UK Government cost many lives. Again, I do not know whether

my advice around the public’s willingness to make sacrifices in an emergency had any

impact on the decisions made in Ireland.

2.5 Given the above, I would argue that the introduction of public health restrictions was

both necessary and for the common good; indeed, such public health measures were

essentially our only defence. However, in asserting this, I recognise that the burden of

restrictions did not fall evenly on the population. The pandemic has been substantially

tougher on members of specific groups, e.g., young adults, families with young children,

families with children who have special needs, those who work in travel, tourism or

hospitality.

2.6 The more difficult issue throughout the pandemic has been to find the right level of

restrictions and to identify measures that are most effective in preventing the spread of

the disease while placing the least burden on the citizenry. These decisions have had to

be made on a constant basis in response to rapidly changing data and circumstances.

Hence, public health restrictions that might be reasonably viewed as proportionate at

one point in time could become too lax or excessively burdensome in a matter of a few

weeks.

2.7 In my interactions with public officials in multiple departments and agencies during the

pandemic, while there may have been divergent views about when stronger restrictions

were needed, or when restrictions could be safely lifted, there has always been a keen

awareness of the huge economic, social and psychological cost of the restrictions

imposed. With respect to the latter, the Behavioural Change Advisory Committee to

NPHET monitored and collected multiple data sources in relation to the mental health

impact of the public health restrictions. As a group, we repeatedly communicated that

this impact was very substantial, especially among younger adults. We were informed

through feedback that this evidence was influential in the design of communications to

support mental wellbeing.

2.8 Judgements about what level of restrictions were proportionate became substantially

more difficult once the first wave of restrictions began to subside. Initially, when no one

could accurately forecast the scale of case numbers, hospitalisations and deaths, there

was near universal support for restrictions to “flatten the curve”, but once the scale of

that curve was known, it was inevitable that reasonable people would disagree about the

relative priority that should be given to suppressing Covid-19 and permitting greater

freedom for organisations and individuals. An important element of this discussion is that

different people have different tolerance for risk.

2.9 One role undertaken by the Behavioural Change Advisory Committee was to monitor

support for the public health measures. Multiple data sources were available to do this,

although the weekly Amárach Tracking Survey commissioned by the Department of

Health was the primary source, due to its regular collection of data from a substantial

national sample. This survey and others undertaken by the BRU indicated that for almost

all of 2020 and the early months of 2021, the general public, on average, believed that

public health restrictions would remain in place for months to come and that the

restrictions were either at about the right level or too weak.3

2.10 Since my experience is that this research finding continues to surprise policymakers,

journalists, researchers, and others involved in public life, here I will emphasise the

strength of it. For example, throughout 2020 the Amárach Tracking Survey asked the

question “Do you think the current Government measures on social distancing are: “too

weak”, “about right” or “too strong”? The average proportion believing the measures to

be too strong was less than 10% and the highest recorded figure was just 13%, in June. A

large majority of the population consistently responded that the measures were “about

right”, while the proportion saying they were “too weak” was above the proportion

saying they were “too strong” for all but one month of the more than nine months that

these data were recorded – only from late May to late June was the reverse marginally

the case. Similarly, in answer to another question, the proportion who thought the

Government response was “too extreme” never climbed above 10% during all of 2020.

Again, from June 2020 to February 2021, a larger proportion of the population believed

that Ireland was trying to return to normal too quickly than believed it was doing so too

slowly. These specific examples come from the Amárach Tracking Survey, but other data

sources confirm the same picture.

2.11 The removal of rights from a minority is not necessarily justified by how small that

minority is or the size of the majority that favours it. However, it is important to

recognise that the overwhelming majority of the Irish population supported the public

health restrictions and in fact, on average, would rather they had been more restrictive

than less.

2.12 The decisions made to lift restrictions in the run up to Christmas require specific mention.

The BRU supplied evidence to NPHET that was included in the CMO’s letter to the

Minister for Health. This evidence suggested that while, on average, the public wanted

some easing of restrictions to help them through Christmas, they were in favour of a

substantially more cautious approach than the one that was adopted.

3. The flexibility of the system to respond efficiently and effectively to an everchanging situation while balancing the fundamental rights of citizens

3.1 Having spent 10 years working in journalism and 15 years providing research for policy, I

have never seen a policy challenge that required such rapid gathering and processing of

evidence combined with coordination across so many different parts of government, all

over a sustained period of time.

3.2 By comparison with other nations, in my view, the initial response to the pandemic in

Ireland was good. I state this based on bilateral conversations with multiple counterparts

about the experience in other countries and based on presentations at webinars hosted

by the OECD and other international organisations.

3 See https://www.gov.ie/en/collection/6b4401-view-the-amarach-public-opinion-survey/ and Belton, C., Julienne, H., Timmons, S., Barjaková, M., Lavin, C., McGowan, F. and Lunn, P.D. (2020). Public expectations for lifting Covid-19 restrictions. ESRI Survey and Statistical Report Series, No. 88.

https://www.gov.ie/en/collection/6b4401-view-the-amarach-public-opinion-survey/

public health restrictions would remain in place for months to come and that the

restrictions were either at about the right level or too weak.3

2.10 Since my experience is that this research finding continues to surprise policymakers,

journalists, researchers, and others involved in public life, here I will emphasise the

strength of it. For example, throughout 2020 the Amárach Tracking Survey asked the

question “Do you think the current Government measures on social distancing are: “too

weak”, “about right” or “too strong”? The average proportion believing the measures to

be too strong was less than 10% and the highest recorded figure was just 13%, in June. A

large majority of the population consistently responded that the measures were “about

right”, while the proportion saying they were “too weak” was above the proportion

saying they were “too strong” for all but one month of the more than nine months that

these data were recorded – only from late May to late June was the reverse marginally

the case. Similarly, in answer to another question, the proportion who thought the

Government response was “too extreme” never climbed above 10% during all of 2020.

Again, from June 2020 to February 2021, a larger proportion of the population believed

that Ireland was trying to return to normal too quickly than believed it was doing so too

slowly. These specific examples come from the Amárach Tracking Survey, but other data

sources confirm the same picture.

2.11 The removal of rights from a minority is not necessarily justified by how small that

minority is or the size of the majority that favours it. However, it is important to

recognise that the overwhelming majority of the Irish population supported the public

health restrictions and in fact, on average, would rather they had been more restrictive

than less.

2.12 The decisions made to lift restrictions in the run up to Christmas require specific mention.

The BRU supplied evidence to NPHET that was included in the CMO’s letter to the

Minister for Health. This evidence suggested that while, on average, the public wanted

some easing of restrictions to help them through Christmas, they were in favour of a

substantially more cautious approach than the one that was adopted.

3. The flexibility of the system to respond efficiently and effectively to an everchanging situation while balancing the fundamental rights of citizens

3.1 Having spent 10 years working in journalism and 15 years providing research for policy, I

have never seen a policy challenge that required such rapid gathering and processing of

evidence combined with coordination across so many different parts of government, all

over a sustained period of time.

3.2 By comparison with other nations, in my view, the initial response to the pandemic in

Ireland was good. I state this based on bilateral conversations with multiple counterparts

about the experience in other countries and based on presentations at webinars hosted

by the OECD and other international organisations.

3 See https://www.gov.ie/en/collection/6b4401-view-the-amarach-public-opinion-survey/ and Belton, C., Julienne, H., Timmons, S., Barjaková, M., Lavin, C., McGowan, F. and Lunn, P.D. (2020). Public expectations for lifting Covid-19 restrictions. ESRI Survey and Statistical Report Series, No. 88.

3.3 I also reach this conclusion from observing the speed with which the Government

managed to organise structures to allow some of the country’s leading researchers to

commission, gather and analyse data, and to report research results to decision-makers.

We were doubtless helped by being able to observe events in other European countries

first and, I would add, by a political system that is less ideologically divided than most. I

also believe that a further advantage was the mere fact of being a small country in which

personal connections already existed between people with key expertise. Nevertheless,

in my view, as someone co-opted into the process, great credit should go to the

Department of Health, the CMO’s office, and more broadly across the health system, for

the speed with which new systems for evidence gathering and synthesis were

established. I found it reassuringly impressive.

3.4 It should be noted that during the early weeks of the pandemic, my experience was that

the public servants most closely involved were working very long hours and both days of

every weekend. The same was true at that time of my own team in the ESRI. One

difficulty was that this degree of flexibility was not sustainable, given how long the

pandemic was going to last.

3.5 Once the first wave of the pandemic began to subside, it became harder for the system to

respond with the necessary flexibility. From my perspective, there were several reasons

for this. The bread and butter of politics is to decide on and adopt positions, then to

argue for them. This is true beyond politicians themselves, to others in the policymaking

system; there is often a cost to changing your mind, or even keeping it open. People want

to know where someone stands and they want Government to provide answers and

publish plans. As a researcher trying to feed objective evidence into the policy discourse, I

found that this system struggled to cope with, or at times even to accept, the inherent

uncertainties of Covid-19.

3.6 For instance, during July and August 2020, the public mood changed. I tried to draw

attention to data that increasingly indicated that the public believed a second wave of

infections was coming and that the Government needed to act. At this point, positions in

favour of more or fewer restrictions had become more entrenched and, in my view, the

resulting lack of flexibility was costly.

4. Restrictions to freedom of movement and freedom of assembly based on the need for public safety

4.1 I am a behavioural scientist, not an epidemiologist, but restrictions to free movement and

assembly were an inevitable part of the necessary response to the threat of Covid-19,

given how it transmits.

4.2 I think there is a case to be made that greater freedom for people to meet outdoors

might have been possible at various stages during the pandemic. The BRU’s research

showed that the public underestimated the additional safety associated with meeting

outdoors instead of indoors, compared to experts. Other research showed that spending

time outdoors was associated with improved mental health. It is possible that allowing

people greater freedom to meet outdoors would have reduced the amount of (more

risky) indoor social interaction. Note that, although informed by evidence, this is a

conjecture made largely with hindsight.

5. Was there sufficient engagement to ensure public support for the necessary introduction of regulations in the interest of public health?

5.1 Having experienced multiple public consultations undertaken in different policy areas, I

would argue that at no stage during the pandemic to date has there been sufficient time

to undertake formal consultation processes. Much of the evidence on which decisions

have been made, and continue to be made, is generally produced just days prior to the

decision. I understand how and why this situation is frustrating for individuals and

(perhaps especially) businesses, but my experience is that it is unavoidable.

5.2 I view some of the work of the BRU during the pandemic as being like a form of

consultation. We have conducted multiple surveys and experiments designed to

understand and gauge the public response to different restrictions and other impacts on

their lives. The aim has been to inform decisions, so that they might minimise the impact

on livelihoods, social lives, and wellbeing, while preventing the spread of Covid-19.

5.3 My experience is not sufficient to be able to comment on the extent of consultation with

businesses and organisations in specific sectors (e.g. hospitality, construction,

healthcare). However, one relevant research finding surrounds the perceived coherence

of the public health restrictions as a whole. The BRU’s research shows that people who

view the restrictions as coherent rather than contradictory have been consistently more

likely to comply with public health guidance.4 Furthermore, there is much evidence from

behavioural science more generally that where guidance is made simpler it is more likely

to be followed. Thus, restrictions that are consistent across different sectors and do not

make special rules in some places but not others, are more likely to be successful.

6. Mandatory hotel quarantine and inter-county travel restrictions to protect public health versus freedom of movement

6.1 I am not aware of relevant behavioural evidence in relation to mandatory hotel

quarantine.

6.2 Since January 2021, the BRU has monitored the level of inter-county travel via an

anonymous online survey. This remained stable from January to May, with 9-10% of the

population crossing a county boundary in a given week. The figure did not change

significantly when the 5km limit was changed to 20km. When the boundary restriction

itself was lifted in May, the proportion climbed to only 14%.

7. Does legislation/regulations, underpinning of current restrictions, contain adequate ‘sunset clauses’ to ensure that there is a clear endpoint to such measures?

7.1 The notion of sunset clauses for regulation partly has its roots in behavioural science.

Default settings are powerful influences on behaviour. A sunset clause is therefore likely

to alter outcomes if the default position is changed from one where a restriction simply

remains in place to a position where it is lifted on a given date unless action is taken to

maintain it. In general, for this reason, I would be a supporter of such clauses, because

4 https://www.gov.ie/en/collection/a7ee4-see-the-results-of-the-social-activity-measure-behavioural-study/

https://www.gov.ie/en/collection/a7ee4-see-the-results-of-the-social-activity-measure-behavioural-study/

5. Was there sufficient engagement to ensure public support for the necessary introduction of regulations in the interest of public health?

5.1 Having experienced multiple public consultations undertaken in different policy areas, I

would argue that at no stage during the pandemic to date has there been sufficient time

to undertake formal consultation processes. Much of the evidence on which decisions

have been made, and continue to be made, is generally produced just days prior to the

decision. I understand how and why this situation is frustrating for individuals and

(perhaps especially) businesses, but my experience is that it is unavoidable.

5.2 I view some of the work of the BRU during the pandemic as being like a form of

consultation. We have conducted multiple surveys and experiments designed to

understand and gauge the public response to different restrictions and other impacts on

their lives. The aim has been to inform decisions, so that they might minimise the impact

on livelihoods, social lives, and wellbeing, while preventing the spread of Covid-19.

5.3 My experience is not sufficient to be able to comment on the extent of consultation with

businesses and organisations in specific sectors (e.g. hospitality, construction,

healthcare). However, one relevant research finding surrounds the perceived coherence

of the public health restrictions as a whole. The BRU’s research shows that people who

view the restrictions as coherent rather than contradictory have been consistently more

likely to comply with public health guidance.4 Furthermore, there is much evidence from

behavioural science more generally that where guidance is made simpler it is more likely

to be followed. Thus, restrictions that are consistent across different sectors and do not

make special rules in some places but not others, are more likely to be successful.

6. Mandatory hotel quarantine and inter-county travel restrictions to protect public health versus freedom of movement

6.1 I am not aware of relevant behavioural evidence in relation to mandatory hotel

quarantine.

6.2 Since January 2021, the BRU has monitored the level of inter-county travel via an

anonymous online survey. This remained stable from January to May, with 9-10% of the

population crossing a county boundary in a given week. The figure did not change

significantly when the 5km limit was changed to 20km. When the boundary restriction

itself was lifted in May, the proportion climbed to only 14%.

7. Does legislation/regulations, underpinning of current restrictions, contain adequate ‘sunset clauses’ to ensure that there is a clear endpoint to such measures?

7.1 The notion of sunset clauses for regulation partly has its roots in behavioural science.

Default settings are powerful influences on behaviour. A sunset clause is therefore likely

to alter outcomes if the default position is changed from one where a restriction simply

remains in place to a position where it is lifted on a given date unless action is taken to

maintain it. In general, for this reason, I would be a supporter of such clauses, because

4 https://www.gov.ie/en/collection/a7ee4-see-the-results-of-the-social-activity-measure-behavioural-study/

there can be a tendency to leave regulations in place rather than evaluate them to see if

they are necessary or effective

7.2 However, in the context of Covid-19 restrictions, I am sceptical about the benefits of this

approach. A sunset clause requires a provisional date to be set for lifting the restriction.

In my view, target dates have not been generally helpful for coping with the inherent

uncertainty of the pandemic. They can generate false hope or expectation, become a

focus for lobbying activity, and are experienced as losses if the hoped for change does not

come through.

Professor Pete Lunn Head of the Behavioural Research Unit Economic and Social Research Institute (ESRI) 28 May 2021

1

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19

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19

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19

48 r

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on

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ade

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00

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esp

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it h

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er f

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o b

e re

aso

nab

ly n

eces

sary

to

pre

ven

t th

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read

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infe

ctio

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4

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re g

ener

ally

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ce it

s e

nac

tmen

t th

e 1

947

Act

has

incl

ud

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iscr

etio

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or

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ief

med

ical

off

icer

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‘…o

rder

in w

riti

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det

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per

son

wh

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rob

able

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urc

e o

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fect

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h a

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fect

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spit

al o

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pla

ce u

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l su

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edic

al o

ffic

er g

ive

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cert

ific

ate…

that

su

ch p

erso

n is

no

lon

ger

a p

rob

able

so

urc

e o

f in

fect

ion

’.5 Acc

ord

ingl

y, it

wo

uld

ap

pea

r th

at t

he

19

47

Act

alr

ead

y co

nfe

rred

so

me

con

sid

erab

le p

ow

ers

on

pu

blic

au

tho

riti

es

on

th

e ev

e o

f C

ovi

d-1

9. T

he

pro

visi

on

of

Go

vern

men

t tr

avel

‘ad

vice

’, in

clu

din

g ad

vice

aim

ed a

t re

du

cin

g

mo

vem

ent

wit

hin

th

e C

om

mo

n T

rave

l Are

a, a

lso

has

so

me

pre

ced

ent,

su

ch a

s d

uri

ng

pre

vio

us

occ

urr

ence

s o

f ‘f

oo

t an

d m

ou

th’ a

nim

al d

isea

se.6

Of

cou

rse

, th

e n

atu

re, s

cale

an

d c

om

ple

xity

of

the

pu

blic

po

licy

resp

on

se t

o C

ovi

d-1

9 h

as b

een

of

a d

iffe

ren

t o

rder

in c

om

par

iso

n t

o p

rio

r p

and

emic

s an

d

epid

emic

s im

pac

tin

g th

e St

ate.

Th

is r

esp

on

se h

as c

om

pri

sed

a m

ixtu

re o

f o

ffic

ial a

dvi

ce, g

uid

ance

, new

legi

slat

ive

init

iati

ves

and

am

end

men

ts t

o p

re-

exis

tin

g le

gisl

atio

n, i

ncl

ud

ing

the

1947

Act

. Th

ese

acti

on

s h

ave,

un

der

stan

dab

ly, g

ive

n r

ise

to q

ues

tio

ns

abo

ut

civi

l lib

erti

es.

Ref

lect

ing

on

th

e p

rop

ort

ion

alit

y o

f su

ch m

easu

res,

it m

ay b

e ap

pro

pri

ate

to

ass

ess

this

at

dif

fere

nt

leve

ls. O

n o

ne

leve

l, le

gisl

ativ

e m

easu

res

them

selv

es

can

be

wei

ghed

rel

ativ

e to

ap

plic

able

ove

rarc

hin

g co

nst

itu

tio

nal

rig

hts

, su

ch a

s th

e ri

ght

un

der

Art

icle

40

.4 o

f th

e C

on

stit

uti

on

th

at ‘[

n]o

cit

izen

sh

all b

e

dep

rive

d o

f h

is p

erso

nal

lib

erty

sav

e in

acc

ord

ance

wit

h la

w’,

as

wel

l as

oth

er (

un

enu

mer

ate

d)

con

stit

uti

on

al r

igh

ts s

uch

as

‘fre

edo

m o

f m

ove

men

t w

ith

in

2 U

nd

er, e

.g.,

sec

tio

n 3

1 o

f th

e 1

94

7 A

ct

3 Reg

ula

tio

ns

18

an

d 1

9 o

f th

e In

fect

ious

Dise

ases

(Airc

raft)

Reg

ulat

ions

194

8 (S

.I. N

o. 1

36

/19

48

) 4 R

egu

lati

on

12

(1)(

c) o

f th

e In

fect

ious

Dise

ases

(Airc

raft)

Reg

ulat

ions

200

9 (S

.I. N

o. 4

11

/20

09

) 5 S

ecti

on

38

of

the

19

47

Act

6 E

.g. P

. An

der

son

, ‘Fo

ot-

and

-mo

uth

tra

vel r

estr

icti

on

s ea

sed

’, Ir

ish T

imes

(2

7 M

arch

20

01

): h

ttp

s://

ww

w.ir

ish

tim

es.c

om

/ne

ws/

foo

t-an

d-m

ou

th-t

rave

l-re

stri

ctio

ns-

ease

d-

1.3

78

73

1

https://www.irishtimes.com/news/foot-and-mouth-travel-restrictions-eased-1.378731

https://www.irishtimes.com/news/foot-and-mouth-travel-restrictions-eased-1.378731

3 th

e St

ate’

, ‘fr

eed

om

to

wo

rk’ e

tc.7 O

n a

no

ther

leve

l, it

may

be

app

rop

riat

e t

o c

on

sid

er t

he

rob

ust

nes

s o

f an

y ap

plic

able

po

licie

s, p

roce

sses

, tra

inin

g et

c.

un

der

pin

nin

g th

e e

xerc

ise

of

‘ad

min

istr

ativ

e’ d

iscr

etio

ns

imp

acti

ng

up

on

per

son

al r

igh

ts. F

or

exam

ple

, th

e He

alth

Act

194

7 (S

ectio

n 38

G –

Rule

s and

Pr

oced

ures

for R

evie

w o

f Qua

rant

ine)

(Cov

id-1

9) R

egul

atio

ns 2

021

pro

vid

e, in

rel

atio

n t

o a

pp

eals

of

ho

tel q

uar

anti

ne,

th

at ‘[

t]h

e ch

ief

app

eals

off

icer

may

issu

e gu

idel

ines

to

des

ign

ated

ap

pea

ls o

ffic

ers

in r

elat

ion

to

th

e co

nd

uct

of,

or

arra

nge

men

ts f

or,

an

y re

qu

ests

fo

r re

view

…’.8

Wit

h r

esp

ect

to t

he

Co

mm

itte

e’s

wo

rk o

n C

ivil

Lib

erti

es D

uri

ng

the

Co

vid

-19

Pan

dem

ic, i

t is

no

ted

th

at o

ur

colle

agu

es a

t Tr

init

y C

olle

ge D

ub

lin C

ovi

d-1

9 La

w

and

Hu

man

Rig

hts

Ob

serv

ato

ry a

nd

els

ewh

ere

in E

uro

pe

(su

ch a

s th

e V

erfa

ssu

ngs

blo

g) h

ave

pro

du

ced

a n

um

ber

of

imp

ort

ant

anal

yses

. A s

pec

ial i

ssu

e o

f

the

Euro

pea

n Jo

urna

l of R

isk R

egul

atio

n p

ub

lish

ed in

Ju

ne

202

0, T

amin

g C

OV

ID-1

9 b

y R

egu

lati

on

, als

o c

arri

es a

nu

mb

er o

f ar

ticl

es a

dd

ress

ing

hu

man

rig

hts

issu

es r

elat

ing

to C

ovi

d-1

9 r

estr

icti

on

s .

Civ

il Li

ber

ties

in t

he

EU

The

rem

ain

der

of

this

su

bm

issi

on

ad

op

ts a

co

mp

arat

ive

dat

a-b

ased

ap

pro

ach

, dra

win

g o

n n

ew r

ese

arch

in U

CD

Gea

ry In

stit

ute

fo

r P

ub

lic P

olic

y. T

his

off

ers

a d

isti

nct

ive

dat

a-d

rive

n u

nd

erst

and

ing

of

mea

sure

s in

Irel

and

aff

ecti

ng

civi

l lib

erti

es c

om

par

ed

wit

h m

easu

res

take

n in

oth

er E

U M

emb

er S

tate

s, in

form

ing

argu

men

ts a

bo

ut

app

rop

riat

enes

s an

d p

rop

ort

ion

alit

y fr

om

a b

road

pu

blic

po

licy,

rat

her

th

an a

pu

rely

lega

l, p

ersp

ecti

ve.

The

UC

D G

eary

Inst

itu

te h

ost

s th

e U

CD

Co

vid

Co

mp

ared

(U

CD

Co

Co

) D

ash

bo

ard

(C

azac

uic

& K

öp

pe,

20

21

) w

hic

h is

bas

ed o

n t

he

Oxf

ord

Co

vid

-19

Go

vern

men

t R

esp

on

se T

rack

er

(Hal

e et

al.,

202

1).

UC

D C

oC

o d

isp

lays

Co

vid

-19

res

tric

tio

ns

aro

un

d t

he

glo

be

in s

imp

le g

rap

hic

s an

d c

ou

ntr

y ra

nki

ngs

. Th

is

anal

ysis

, dra

win

g o

n t

he

UC

D C

oC

o D

ash

bo

ard

, co

nce

ntr

ate

s o

n f

ou

r in

dic

ato

rs r

elat

ed

to

civ

il lib

erti

es

in c

om

par

iso

n t

o t

he

EU2

8 (

wh

ich

, fo

r th

is p

arti

cula

r

pu

rpo

se, i

ncl

ud

es t

he

27

EU M

emb

er S

tate

s p

lus

the

UK

). W

ith

th

e av

aila

ble

dat

a, w

e ca

n s

ho

w h

ow

re

stri

ctiv

e th

e Ir

ish

mea

sure

s h

ave

bee

n o

ver

tim

e in

rela

tive

ter

ms.

It h

as t

o b

e n

ote

d t

hat

th

e p

rese

nte

d d

ata

and

fig

ure

s ar

e su

mm

ary

ind

ices

to

pro

vid

e an

un

der

stan

din

g o

f th

e re

lati

ve s

cale

of

rest

rict

ion

s

acro

ss E

uro

pe.

A n

uan

ced

an

alys

is o

f sp

ecif

ic r

estr

icti

on

s w

ou

ld r

eq

uir

e m

ore

in-d

epth

qu

alit

ativ

e re

sear

ch.

Firs

t, r

estr

icti

on

s o

n g

ath

erin

gs h

ave,

ove

rall,

bee

n b

road

ly in

lin

e w

ith

th

e re

st o

f th

e EU

, co

nsi

der

ing

that

Irel

and

als

o h

ad o

ne

of

the

hig

hes

t in

cid

ence

rate

s o

f d

isea

se in

th

e fi

rst

and

th

ird

wav

e. H

ow

ever

, fig

ure

1 a

lso

ind

icat

es t

hat

tig

hte

r re

stri

ctio

ns

on

gat

her

ings

wer

e in

pla

ce m

uch

lon

ger

in J

uly

20

20

and

wer

e q

uic

kly

rein

tro

du

ced

in S

epte

mb

er 2

020

, wh

en o

ther

EU

co

un

trie

s w

ere

slig

htl

y m

ore

lib

eral

in t

hei

r ap

pro

ach

.

7 See

, e.g

., C

on

or

O’M

aho

ny,

‘Th

e C

on

stit

uti

on

alit

y o

f M

and

ato

ry H

ote

l Qu

aran

tin

e’ (

4 F

ebru

ary

20

21

), C

onst

itutio

n Pr

ojec

t @ U

CC: h

ttp

://c

on

stit

uti

on

pro

ject

.ie/?

p=7

92

8 R

egu

lati

on

5(2

) o

f S.

I. N

o. 1

43

/20

21

https://www.tcd.ie/law/tricon/covidobservatory/index.php


https://verfassungsblog.de/

https://www.cambridge.org/core/journals/european-journal-of-risk-regulation/issue/B22FD034816218193EE6063AB954FD77

https://publicpolicy.ie/perspectives/ucd-covid-compared-ucd-coco-displaying-restrictions-across-the-globe/

http://constitutionproject.ie/?p=792

4 Fi

gure

1: R

estr

icti

on

s o

n g

ath

erin

gs

Sour

ce: U

CD C

oCo,

C4

(Caz

acui

c & K

öppe

, 202

1)

Seco

nd

, Ire

lan

d h

ad r

elat

ive

ly s

tric

t re

stri

ctio

ns

on

‘sta

y at

ho

me

’ req

uir

emen

ts a

nd

inte

rnal

tra

vel (

no

t d

isp

laye

d h

ere)

. Sta

y at

ho

me

req

uir

emen

ts r

efe

r to

the

deg

ree

of

rest

rict

ion

s o

n le

avin

g th

e h

ou

se. T

he

hig

hes

t le

vel i

s a

gen

eral

req

uir

emen

t to

“n

ot

[lea

ve t

he]

ho

use

wit

h m

inim

al e

xcep

tio

ns”

(H

ale

et

al.

202

0, p

. 21

). T

he

mea

sure

fo

r in

tern

al t

rave

l res

tric

tio

ns

ran

ges

fro

m n

o m

easu

res

to g

ener

al in

tern

al m

ove

men

t re

stri

ctio

ns

in p

lace

on

a s

cale

fro

m z

ero

to

thre

e.

5 Ir

elan

d’s

sta

y at

ho

me

req

uir

emen

ts w

ere

mo

stly

in li

ne

wit

h o

ther

EU

co

un

trie

s u

p u

nti

l Oct

ob

er 2

02

0. S

ince

th

en, I

rela

nd

has

rec

ord

ed a

sco

re o

f 2

, wh

ile

the

EU a

vera

ge w

as a

rou

nd

1.5

. Th

e in

dic

ato

r ca

nn

ot

dis

pla

y d

iffe

ren

ces

in c

urf

ews,

wh

ich

so

me

cou

ntr

ies

had

imp

lem

ente

d d

uri

ng

eve

nin

g an

d n

igh

t

tim

es. W

ith

reg

ard

s to

inte

rnal

tra

vel r

estr

icti

on

s, Ir

elan

d h

ad a

lso

mir

rore

d t

he

EU a

vera

ge u

nti

l Sep

tem

ber

20

20

, bu

t si

nce

th

en h

as b

een

rel

ativ

ely

stri

ct

(sco

rin

g 2

), w

hile

EU

co

un

trie

s h

ad m

uch

ligh

ter

rest

rict

ion

s d

uri

ng

that

per

iod

(ar

ou

nd

1).

Sim

ilar

to t

he

pre

vio

us

ind

icat

or,

co

un

trie

s h

ad im

ple

men

ted

dif

fere

nt

trav

el r

adiu

ses,

wh

ich

th

e in

dic

ato

r d

oes

no

t ca

ptu

re. I

n s

um

, Ire

lan

d r

esp

on

ded

dyn

amic

ally

to

incr

easi

ng

inci

den

ce r

ates

, bu

t im

ple

men

ted

tig

ht

rest

rict

ion

s to

inte

rnal

tra

vel a

nd

sta

y at

ho

me

req

uir

emen

ts.

The

op

po

site

can

be

ob

serv

ed a

rou

nd

inte

rnat

ion

al t

rave

l co

ntr

ols

(se

e al

so K

öp

pe

& C

azac

uic

20

21

). T

he

ind

icat

or

ran

ges

fro

m z

ero

to

fo

ur:

0 -

No

mea

sure

s

1 -

Scr

een

ing

2 -

Qu

aran

tin

e ar

riva

ls f

rom

hig

h-r

isk

regi

on

s

3 -

Ban

on

arr

ival

s fr

om

so

me

regi

on

s

4 –

Ban

on

all

regi

on

s o

r to

tal b

ord

er c

losu

re

Acc

ord

ing

to t

his

ind

icat

or,

Irel

and

co

nsi

ste

ntl

y h

ad r

elat

ive

ly lo

ose

tra

vel r

est

rict

ion

s fo

r in

tern

atio

nal

arr

ival

s co

mp

ared

to

oth

er E

U c

ou

ntr

ies

thro

ugh

ou

t

202

0 (

figu

re 2

). O

nly

at

the

hei

ght

of

the

thir

d w

ave

wer

e ti

ghte

r co

ntr

ols

intr

od

uce

d. T

his

alig

ned

Irel

and

to

th

e EU

no

rm.

6 Fi

gure

2: I

nte

rnat

ion

al T

rave

l Re

stri

ctio

ns

Sour

ce: U

CD C

oCo,

C8

(Caz

acui

c & K

öppe

, 202

1)

In s

um

, Ire

lan

d’s

res

tric

tio

ns

hav

e b

road

ly t

rack

ed

EU

tre

nd

s ac

ross

th

e fo

ur

ind

icat

ors

rel

ated

to

civ

il lib

erti

es, b

ut

ther

e ar

e so

me

sign

ific

ant

vari

atio

ns

betw

een

civi

l lib

erti

es. O

ver

tim

e, Ir

elan

d h

as b

een

co

mp

arat

ivel

y st

rict

on

lim

itin

g in

tern

al t

rave

l an

d s

tay

at h

om

e re

qu

irem

ents

, bu

t re

lati

vely

less

stri

nge

nt

on

inte

rnat

ion

al t

rave

l an

d q

uar

anti

ne

. Ch

ange

s in

res

tric

tio

ns

hav

e te

nd

ed t

o t

rack

ch

ange

s in

inci

den

ce r

ates

an

d h

osp

ital

isat

ion

s, w

hic

h w

ou

ld

be

an in

dic

atio

n t

hat

pro

po

rtio

nat

e p

olic

y re

spo

nse

s w

ere

atte

mp

ted

.

7 B

ased

on

th

is d

escr

ipti

ve d

ata

alo

ne,

we

can

no

t o

bje

ctiv

ely

det

erm

ine

wh

eth

er t

he

com

bin

atio

n, d

ura

tio

n a

nd

str

inge

ncy

of

rest

rict

ion

s w

ere

nec

essa

ry a

nd

prop

ortio

nate

at

any

give

n p

oin

t. W

e ca

n, h

ow

ever

, ded

uce

th

at t

hes

e re

stri

ctio

ns

wer

e im

ple

men

ted

in r

esp

on

se t

o c

han

gin

g in

fect

ion

dyn

amic

s an

d t

hat

they

ap

pea

r, f

or

the

mo

st p

art,

to

hav

e b

road

ly t

rack

ed E

U t

ren

ds

(wit

h t

he

exce

pti

on

, un

til r

ece

ntl

y, o

f in

tern

atio

nal

tra

vel)

. Res

tric

tio

ns

wer

e d

ynam

ic

and

su

gges

t at

leas

t an

att

emp

t to

bal

ance

th

e im

pac

t o

f h

ealt

h r

estr

icti

on

s w

ith

civ

il lib

erti

es a

nd

oth

er s

oci

al a

nd

eco

no

mic

dem

and

s. F

urt

her

sta

tist

ical

po

licy

rese

arch

, co

st b

enef

it a

nal

yses

an

d q

ual

itat

ive

rese

arch

wo

uld

be

req

uir

ed t

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https://publicpolicy.ie/perspectives/ucd-covid-compared-ucd-coco-displaying-restrictions-across-the-globe/

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colin

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t@uc

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8

SSuubbmmiissssiioonn ttoo tthhee OOiirreeaacchhttaass JJooiinntt CCoommmmiitttteeee oonn JJuussttiiccee,, CCOOVVIIDD--1199 aanndd CCiivviill LLiibbeerrttiieess

Irish Human Rights and Equality Commission

May 2021

16 – 22 Green Street, Dublin 7, D07 CR20 T (01) 858 9601 | F (01) 858 9609 | E [email protected] | www.ihrec.ie

CL_04

http://www.ihrec.ie/

SSuubbmmiissssiioonn ttoo tthhee OOiirreeaacchhttaass JJooiinntt CCoommmmiitttteeee oonn JJuussttiiccee,, CCOOVVIIDD--1199 aanndd CCiivviill LLiibbeerrttiieess

Irish Human Rights and Equality Commission

May 2021

16 – 22 Green Street, Dublin 7, D07 CR20 T (01) 858 9601 | F (01) 858 9609 | E [email protected] | www.ihrec.ie

CL_04

Contents

Introduction ..................................................................................................... 1

Balancing the fundamental rights of individuals and the State's duty to protect public health ........................................................................................ 2

Clarity and Transparency ................................................................................ 4

Policing the Emergency ................................................................................... 4

Addressing Inequality in Impacts .................................................................... 7

Human Rights and Equality Capacity and Scrutiny ........................................ 9

Participation and Information .......................................................................10

Concluding Comments ..................................................................................11

1

Introduction

1. The Irish Human Rights and Equality Commission (‘the Commission’) is both the “A”

Status National Human Rights Institution (‘NHRI’) and the National Equality Body for

Ireland. Under the Irish Human Rights and Equality Commission Act 2014, the

Commission is mandated to keep under review the adequacy and effectiveness of

law and practice in the State relating to the protection of human rights and equality.

2. The Commission welcomes the opportunity to contribute to the Joint Committee

on Justice’s deliberations on whether the appropriate balance between the

fundamental rights of members of Irish society and the State's duty to protect

public health was struck during the COVID-19 pandemic.

3. To date, the Commission had raised a number of specific human rights and equality

concerns arising from the State’s legislative and policy responses to the COVID-19

pandemic In September 2020, the Commission appeared before the Oireachtas

Special Committee on COVID-19 on the subject of the adequacy of the State’s

legislative framework to respond to the COVID-19 Pandemic and potential future

national emergencies.1 In February 2021, the Commission published the research

report Ireland’s Emergency Powers During the COVID-19 Pandemic, which we

include with this submission for the information of the Committee.2

4. Rather than go through the specific questions listed in the committee’s call for

submissions, we set out our response below, shaped by the key findings of the

aforementioned research. In summary, while acknowledging the difficult balance

that must be struck by lawmakers between fundamental rights and an effective

response to a public health crisis, the key findings of this research are that:

1 IHREC, Emergency Legislation Around COVID Must be the Exception Not the Norm (Press release, 09 September 2020). See full written submission to the Committee: IHREC, Submission to the Special Committee on COVID-19 Response Regarding the Adequacy of the State's Legislative Framework to Respond to COVID-19 Pandemic and Potential Future National Emergencies (September 2020). 2 The study, authored by experts from the COVID-19 Law and Human Rights Observatory at Trinity College Dublin, looked at the 4 statutes and more than 67 sets of regulations enacted in the State between March and December 2020 in response to the COVID-19 pandemic. See IHREC/COVID-19 Law and Human Rights Observatory, Ireland’s Emergency Powers During the COVID-19 Pandemic (February 2021).

https://www.ihrec.ie/emergency-legislation-around-covid-must-be-the-exception-not-the-norm/

https://www.ihrec.ie/documents/submission-to-the-special-committee-on-covid-19-response-regarding-the-adequacy-of-the-states-legislative-framework-to-respond-to-covid-19-pandemic-and-potential-future-national-emergencies/



https://www.ihrec.ie/app/uploads/2021/02/Irelands-Emergency-Powers-During-the-Covid-19-Pandemic-25022021.pdf

1

Introduction

1. The Irish Human Rights and Equality Commission (‘the Commission’) is both the “A”

Status National Human Rights Institution (‘NHRI’) and the National Equality Body for

Ireland. Under the Irish Human Rights and Equality Commission Act 2014, the

Commission is mandated to keep under review the adequacy and effectiveness of

law and practice in the State relating to the protection of human rights and equality.

2. The Commission welcomes the opportunity to contribute to the Joint Committee

on Justice’s deliberations on whether the appropriate balance between the

fundamental rights of members of Irish society and the State's duty to protect

public health was struck during the COVID-19 pandemic.

3. To date, the Commission had raised a number of specific human rights and equality

concerns arising from the State’s legislative and policy responses to the COVID-19

pandemic In September 2020, the Commission appeared before the Oireachtas

Special Committee on COVID-19 on the subject of the adequacy of the State’s

legislative framework to respond to the COVID-19 Pandemic and potential future

national emergencies.1 In February 2021, the Commission published the research

report Ireland’s Emergency Powers During the COVID-19 Pandemic, which we

include with this submission for the information of the Committee.2

4. Rather than go through the specific questions listed in the committee’s call for

submissions, we set out our response below, shaped by the key findings of the

aforementioned research. In summary, while acknowledging the difficult balance

that must be struck by lawmakers between fundamental rights and an effective

response to a public health crisis, the key findings of this research are that:

1 IHREC, Emergency Legislation Around COVID Must be the Exception Not the Norm (Press release, 09 September 2020). See full written submission to the Committee: IHREC, Submission to the Special Committee on COVID-19 Response Regarding the Adequacy of the State's Legislative Framework to Respond to COVID-19 Pandemic and Potential Future National Emergencies (September 2020). 2 The study, authored by experts from the COVID-19 Law and Human Rights Observatory at Trinity College Dublin, looked at the 4 statutes and more than 67 sets of regulations enacted in the State between March and December 2020 in response to the COVID-19 pandemic. See IHREC/COVID-19 Law and Human Rights Observatory, Ireland’s Emergency Powers During the COVID-19 Pandemic (February 2021).

2

- The government blurred boundaries between guidance and regulations, leading to confusion among people;

- Certain groups were potentially disproportionately affected by policing powers but we lack the data to clarify this; and

- Defects in the law making and review process have led to a lack of human rights and equality expertise in decision making structures.

5. Should the committee wish, we will be more than happy to further scrutinise more

recent developments not covered below, such as mandatory hotel quarantine and

the EU digital green certificate.

Balancing the fundamental rights of individuals and the State's duty to protect public health

6. The Commission recognises that the COVID-19 crisis has presented an

unprecedented challenge to the State, and its obligation to protect the rights to life

and health. From the outset of the pandemic, and from the earliest introduction of

legal and policy measures to address it, the Commission has stressed the need for

the State to have regard to the human rights and equality impacts of its emergency

decision-making. In the Commission’s appearance before the Oireachtas Special

Committee on COVID-19 in September 2020, the Commission stated that

emergency legislation must only be used in exceptional circumstances, and must be

subjected to strict human rights standards and oversight.3

7. The emergency measures, introduced under the statutes and regulations enacted

in response to COVID-19 to protect individual lives and public health, have

restricted certain human rights in a manner which would not be lawfully permissible

under ordinary circumstances. While certain human rights can be limited on the

grounds of the protection of public health, restrictions on rights must meet certain

minimum requirements – legality, necessity, proportionality and non-discrimination

3 IHREC https://www.ihrec.ie/documents/submission-to-the-special-committee-on-covid-19-response-regarding-the-adequacy-of-the-states-legislative-framework-to-respond-to-covid-19-pandemic-and-potential-future-national-emergencies/ 4 IHREC, Statement from the Irish Human Rights and Equality Commission on COVID-19 Oversight in Respect of Human Rights and Equality (27 April 2020); IHREC, Submission to the Special Committee on COVID-19 Response Regarding the Adequacy of the State's Legislative Framework to Respond to COVID-19 Pandemic and Potential Future National Emergencies (September 2020) pp. 1-2.




https://www.ihrec.ie/statement-from-the-irish-human-rights-and-equality-commission-on-covid-19-oversight-in-respect-of-human-rights-and-equality/





3

– and human rights and equality principles must inform the implementation of the

emergency measures.4 This adherence to the principles of human rights and

equality is not only important to protect people in times of crisis, it is also about

protecting against erosion of our values, our democracy, and the rights and equality

we all deserve.

8. This is the context in which we commissioned the research report Ireland’s

Emergency Powers During the COVID-19 Pandemic from the Trinity College Dublin

COVID-19 Law and Human Rights Observatory. The report provides a clear

overview of the human rights and equality obligations that must inform the State’s

deployment of emergency powers in response to COVID-19. It also demonstrates

the crucial relevance of the Public Sector Human Rights and Equality Duty and its

function in informing decision-making on all aspects of law and policy.

9. The report provides an insightful account of the manner in which emergency

measures and regulations are being decided and introduced, including where there

appear to be concerning gaps in transparency and in our systems of democratic

scrutiny. While, in the main, such measures can be justified by the obligation on the

State to protect public health, the report identifies some areas of particular concern

shared by the Commission.

10. These include:

- The blurring of the boundary between legal requirements and public health guidance – something which is fundamentally out of step with the principle of the rule of law;

- The potential for emergency measures and their enforcement to disproportionately affect certain disadvantaged and more vulnerable groups, including the significant effect of indirect enforcement; and

- The lack of human rights and equality expertise in the decision-making structures put in place to tackle the pandemic, or in the systems that implement and scrutinise these decisions. This also encompasses a notable lack of consultation with groups likely to be particularly impacted.

4 IHREC, Statement from the Irish Human Rights and Equality Commission on COVID-19 Oversight in Respect of Human Rights and Equality (27 April 2020); IHREC, Submission to the Special Committee on COVID-19 Response Regarding the Adequacy of the State's Legislative Framework to Respond to COVID-19 Pandemic and Potential Future National Emergencies (September 2020) pp. 1-2.






3

– and human rights and equality principles must inform the implementation of the

emergency measures.4 This adherence to the principles of human rights and

equality is not only important to protect people in times of crisis, it is also about

protecting against erosion of our values, our democracy, and the rights and equality

we all deserve.

8. This is the context in which we commissioned the research report Ireland’s

Emergency Powers During the COVID-19 Pandemic from the Trinity College Dublin

COVID-19 Law and Human Rights Observatory. The report provides a clear

overview of the human rights and equality obligations that must inform the State’s

deployment of emergency powers in response to COVID-19. It also demonstrates

the crucial relevance of the Public Sector Human Rights and Equality Duty and its

function in informing decision-making on all aspects of law and policy.

9. The report provides an insightful account of the manner in which emergency

measures and regulations are being decided and introduced, including where there

appear to be concerning gaps in transparency and in our systems of democratic

scrutiny. While, in the main, such measures can be justified by the obligation on the

State to protect public health, the report identifies some areas of particular concern

shared by the Commission.

10. These include:

- The blurring of the boundary between legal requirements and public health guidance – something which is fundamentally out of step with the principle of the rule of law;

- The potential for emergency measures and their enforcement to disproportionately affect certain disadvantaged and more vulnerable groups, including the significant effect of indirect enforcement; and

- The lack of human rights and equality expertise in the decision-making structures put in place to tackle the pandemic, or in the systems that implement and scrutinise these decisions. This also encompasses a notable lack of consultation with groups likely to be particularly impacted.

4 IHREC, Statement from the Irish Human Rights and Equality Commission on COVID-19 Oversight in Respect of Human Rights and Equality (27 April 2020); IHREC, Submission to the Special Committee on COVID-19 Response Regarding the Adequacy of the State's Legislative Framework to Respond to COVID-19 Pandemic and Potential Future National Emergencies (September 2020) pp. 1-2.

4

Clarity and Transparency

11. The Commission has stressed the importance of ensuring clarity, transparency and

adequate scrutiny of the regulations arising from the emergency legislation enacted

in the pandemic, as well as transparency in the exercise of new powers by An Garda

Síochána (AGS) and other agents of the State.

12. However, the Government’s making and presentation of regulations and public

health guidance has persistently blurred the boundary between legal requirements

and public health guidance in its COVID-19 response.5 The enforcement of the

legislation and guidance has been problematic as members of AGS have enforced

public health guidance as if it were law. This lack of clear communication has created

uncertainty and inequality for those who may not understand the distinction

between legal requirement and public health guidance; for example, older people

thinking they are legally required to ‘cocoon’. Government communication relating

to COVID-19 must be clear and transparent. In particular, the Government should

clearly communicate the distinction between legal regulations and public health

guidance, and should not present public health advice as if it were criminally

enforceable.

Policing the Emergency

13. Since the outset of the pandemic, the Commission has called for the enforcement

of emergency powers to be exercised in a manner that is compatible with, and has

regard to, Ireland’s human rights and equality obligations.6 Noting the extensive

powers afforded to AGS under the legislation, the Commission has raised the need

for comprehensive and detailed disaggregated data and information on the

implementation of these emergency powers, to ensure the powers are being

exercised in a transparent manner and in line with human rights and equality

5 IHREC/COVID-19 Law and Human Rights Observatory, Ireland’s Emergency Powers During the Covid-19 Pandemic (February 2021). 6 See IHREC, Submission to the Special Committee on COVID-19 Response Regarding the Adequacy of the State's Legislative Framework to Respond to COVID-19 Pandemic and Potential Future National Emergencies (September 2020) pp. 2-3.






5

principles, including proportionality.7 In particular, the Commission has raised the

need for detailed data and information on arrests and on the use of the power to

direct people under the legislation, and to provide clarity on the interplay between

AGS’s use of the COVID-19 emergency powers and existing criminal law powers.

14. The report, Ireland’s Emergency Powers During the COVID-19 Pandemic, suggests

that Garda enforcement of emergency COVID-19 powers has disproportionately

affected young people, ethnic and racial minorities, Travellers and Roma. However,

the impact of emergency powers on these groups cannot be ascertained due to the

lack of reported disaggregated data. The authors of the report join the Commission

and the Policing Authority in recommending that the Garda Commissioner take

steps to ensure that disaggregated data is obtained on the exercise of all

enforcement powers, tracking all prohibited grounds of discrimination under the

Equal Status Acts 2000-2018.8 The collection of equality data, under the grounds

covered by the Equal Status Acts 2000-2018, is necessary for State bodies to

comply with their Public Sector Equality and Human Rights Duty (the Duty) to

assess, address and report on progress in relation to equality and human rights.9

15. The provision of disaggregated data and information on the use of Garda powers

under the legislation is in the public interest and important for providing

reassurance to the public that the use of extraordinary powers is being

7 IHREC, Statement from the Irish Human Rights and Equality Commission on COVID-19 Oversight in Respect of Human Rights and Equality (Press release, 27 April 2020); IHREC, Letter to Garda Commissioner on COVID Powers Policing (28 April 2020); IHREC, Commission’s Call for Additional Data from An Garda Síochána on COVID Policing Restated in Policing Authority Report (Press release, 22 May 2020). 8 The Commission is of the view that that the collection of equality data, including special categories of personal data such as race and ethnicity data, can be undertaken by public bodies, including An Garda Síochána, in compliance with European and Irish data protection legislation, namely GDPR and the Data Protection Act 2018. While identifying an appropriate legal basis under Article 6 and a permissible condition under Article 9 of the General Data Protection Regulation (GDPR) for processing equality data is a matter for each public body as a data controller, the legal basis and condition does now exist to allow public bodies to process equality data. While there is a responsibility to protect personal data and comply with regulations, it is important to ensure that data is collected on all populations including minority cohorts to ensure that statistical analysis can be used to inform future legislation, policies and services. See IHREC, Assisting the Effective Implementation of the Public Sector Equality and Human Rights Duty: Tool for an evidence-based assessment of equality and human rights issues (2020) page 11. For more information and guidance see Guidelines on Improving the Collection and Use of Equality Data, Equality Sub-Group, High Level Group on Non-Discrimination, Equality and Diversity, European Commission, DG Justice and Consumers, Brussels, 2018. 9 IHREC, Implementing the Public Sector Equality and Human Rights Duty (2019) pages 16, 23-24; IHREC, COVID-19 and the Public Sector Equality and Human Rights Duty (2020) page 5.



https://www.ihrec.ie/app/uploads/2020/05/Letter-from-IHREC-to-Garda-Commissioner-Harris-28-April-2020.pdf

https://www.ihrec.ie/app/uploads/2020/05/Letter-from-IHREC-to-Garda-Commissioner-Harris-28-April-2020.pdf

https://www.ihrec.ie/commissions-call-for-additional-data-from-an-garda-siochana-on-covid-policing-restated-in-policing-authority-report/

https://www.ihrec.ie/commissions-call-for-additional-data-from-an-garda-siochana-on-covid-policing-restated-in-policing-authority-report/

https://www.ihrec.ie/app/uploads/2020/09/IHREC-Tool-for-an-Evidence-Based-Assessment-of-Equality-and-Human-Rights-Issues.pdf

https://www.ihrec.ie/app/uploads/2020/09/IHREC-Tool-for-an-Evidence-Based-Assessment-of-Equality-and-Human-Rights-Issues.pdf

https://ec.europa.eu/info/sites/default/files/final_guidelines_4-10-18_without_date_july.pdf



https://www.ihrec.ie/app/uploads/2019/03/IHREC_Public_Sector_Duty_Final_Eng_WEB.pdf

https://www.ihrec.ie/app/uploads/2020/09/Guidance-Note-on-COVID-19-and-the-Public-Sector-Equality-and-Human-Right-Duty.pdf

5

principles, including proportionality.7 In particular, the Commission has raised the

need for detailed data and information on arrests and on the use of the power to

direct people under the legislation, and to provide clarity on the interplay between

AGS’s use of the COVID-19 emergency powers and existing criminal law powers.

14. The report, Ireland’s Emergency Powers During the COVID-19 Pandemic, suggests

that Garda enforcement of emergency COVID-19 powers has disproportionately

affected young people, ethnic and racial minorities, Travellers and Roma. However,

the impact of emergency powers on these groups cannot be ascertained due to the

lack of reported disaggregated data. The authors of the report join the Commission

and the Policing Authority in recommending that the Garda Commissioner take

steps to ensure that disaggregated data is obtained on the exercise of all

enforcement powers, tracking all prohibited grounds of discrimination under the

Equal Status Acts 2000-2018.8 The collection of equality data, under the grounds

covered by the Equal Status Acts 2000-2018, is necessary for State bodies to

comply with their Public Sector Equality and Human Rights Duty (the Duty) to

assess, address and report on progress in relation to equality and human rights.9

15. The provision of disaggregated data and information on the use of Garda powers

under the legislation is in the public interest and important for providing

reassurance to the public that the use of extraordinary powers is being

7 IHREC, Statement from the Irish Human Rights and Equality Commission on COVID-19 Oversight in Respect of Human Rights and Equality (Press release, 27 April 2020); IHREC, Letter to Garda Commissioner on COVID Powers Policing (28 April 2020); IHREC, Commission’s Call for Additional Data from An Garda Síochána on COVID Policing Restated in Policing Authority Report (Press release, 22 May 2020). 8 The Commission is of the view that that the collection of equality data, including special categories of personal data such as race and ethnicity data, can be undertaken by public bodies, including An Garda Síochána, in compliance with European and Irish data protection legislation, namely GDPR and the Data Protection Act 2018. While identifying an appropriate legal basis under Article 6 and a permissible condition under Article 9 of the General Data Protection Regulation (GDPR) for processing equality data is a matter for each public body as a data controller, the legal basis and condition does now exist to allow public bodies to process equality data. While there is a responsibility to protect personal data and comply with regulations, it is important to ensure that data is collected on all populations including minority cohorts to ensure that statistical analysis can be used to inform future legislation, policies and services. See IHREC, Assisting the Effective Implementation of the Public Sector Equality and Human Rights Duty: Tool for an evidence-based assessment of equality and human rights issues (2020) page 11. For more information and guidance see Guidelines on Improving the Collection and Use of Equality Data, Equality Sub-Group, High Level Group on Non-Discrimination, Equality and Diversity, European Commission, DG Justice and Consumers, Brussels, 2018. 9 IHREC, Implementing the Public Sector Equality and Human Rights Duty (2019) pages 16, 23-24; IHREC, COVID-19 and the Public Sector Equality and Human Rights Duty (2020) page 5.

6

implemented in line with human rights and equality principles, including necessity,

proportionality and non-discrimination. The collection and public reporting of

disaggregated data on police powers is particularly important to understand how

the implementation of this legislation is impacting people in different sectors of

society. The Commission has previously raised concerns around the level of cultural

competence within the policing system, with evidence of discrimination faced by

minority ethnic groups, in particular, the racial profiling in the use of stop and search

powers.10 The Commission is of the view that human rights and equality standards,

intercultural awareness, and cultural competency are central to the initial and

continuous training of all members of AGS.11

16. The Commission has also raised concerns with regard to the use of Anti-Spit

Guards as a use of force option for AGS during the pandemic.12 In particular, the

Commission expressed concern around the adequacy of procedural safeguards in

place in the deployment of Anti-Spit Guards on children and people with mental

health issues. The Commission also highlighted data gaps in the reporting of the use

of the Anti-Spit Guard. The Commission is of the view that lack of availability of

comprehensive, quality and transparent data prevents an effective review of the

use of Anti-Spit Guards. The Commission has stressed that Anti-Spit Guards

should only be used as a restraint of last-resort, and would be concerned if it was

retained as a use of force option beyond the current public health emergency.13

10 IHREC, Ireland and the Convention on the Elimination of Racial Discrimination: Submission to the United Nations Committee on the Elimination of Racial Discrimination on Ireland’s Combined 5th to 9th Report (October 2019) pp. 136-140. 11 IHREC, Ireland and the Convention on the Elimination of Racial Discrimination: Submission to the United Nations Committee on the Elimination of Racial Discrimination on Ireland’s Combined 5th to 9th Report (October 2019) p. 140; IHREC, Submission to the Commission on the Future of Policing (February 2018) p. 10. 12 IHREC, Letter to Assistant Commissioner Dublin Metropolitan Region re Use of Anti-Spit Guards by An Garda Síochána (27 August 2020). 13 The Garda Síochána have completed its evaluation on the use and management of Anti-Spit Guards, and the Garda Commissioner has engaged with the Policing Authority on the use of these devices. The Policing Authority note that “[o]verall the evaluation did not provide any firm conclusions as to whether the anti-spit hoods have been effective or if they should be retained as part of Garda Síochána equipment.” The Policing Authority also noted that “[t]he Commissioner stressed that he would be reviewing further [the use of the Anti-Spit Guard] and would reach a decision by 30 September 2021.” See Policing Authority, Report on Policing Performance by the Garda Síochána during COVID-19 Health Crisis (19 April 2021) p. 16; Policing Authority, Report on Policing Performance by the Garda Síochána during COVID-19 Health Crisis (17 May 2021) p. 16.

https://www.ihrec.ie/app/uploads/2019/11/IHREC_CERD_UN_Submission_Oct_19.pdf






https://www.ihrec.ie/app/uploads/2018/02/Submission-to-the-Commission-on-the-Future-of-Policing.pdf

https://www.ihrec.ie/documents/letter-to-assistant-commissioner-dublin-metropolitan-region-re-use-of-anti-spit-guards-by-an-garda-siochana/

https://www.ihrec.ie/documents/letter-to-assistant-commissioner-dublin-metropolitan-region-re-use-of-anti-spit-guards-by-an-garda-siochana/

https://www.policingauthority.ie/assets/uploads/documents/2021_04_19_Report_13_on_policing_performance_during_Covid-19_Final.pdf




7

Addressing Inequality in Impacts

17. The Commission has consistently stressed that while the pandemic is a challenge

for the whole country, it is impacting, and will continue to impact, different people

more acutely than others, including:

- Women; - Older people; - People with disabilities;14 - Residents in Direct Provision;15 - Members of the Traveller community;16

- Minority ethnic groups; - People living in homelessness; - People experiencing domestic violence; and - People in precarious employment.

18. COVID-19 and the response to the pandemic has both exposed and exacerbated

existing inequality in Ireland. This inequality is evidenced in the sharp divergence in

the experience of different groups in our society and, at times, a divergence in

rights. One significant disparity in rights is reflected in the treatment of people with

disabilities. As the pandemic has progressed, there has been little evidence in the

policy response that the need to balance the requirement to protect health and life,

and other rights and freedoms, has reflected the particular rights and freedoms of

people with disabilities. Instead, the COVID-19 pandemic has highlighted the limited

realisation of disabled people’s rights and given rise to significant risks of

discrimination and the undermining of rights for persons with disabilities in areas

ranging from health and wellbeing to education and employment.17

14 IHREC, The Impact of COVID-19 on People with Disabilities Submission by the Irish Human Rights and Equality Commission to the Oireachtas Special Committee on COVID-19 Response (June 2020). See also IHREC, COVID Committee Told Significant Gaps and Vulnerabilities in Policy and Services have resulted in a Disproportionate Impact on People with Disabilities (Press release, 17 July 2020). 15 IHREC, Statement from the Irish Human Rights and Equality Commission In Respect of Direct Provision (Press release, 08 May 2020); IHREC, Statement from the Irish Human Rights and Equality Commission In Respect of Direct Provision (Press release, 19 August 2020). 16 The Commission has drawn attention to how inadequate conditions on Traveller halting sites, such as the lack of running water, makes Travellers particularly vulnerable to the pandemic. See IHREC, Comments on Ireland’s 17th National Report on the Implementation of the European Social Charter (June 2020) pp. 12-13; IHREC, Submission to the Joint Committee on Key Issues affecting the Traveller Community (February 2021) pp. 17-18. 17 IHREC, The Impact of COVID-19 on People with Disabilities Submission by the Irish Human Rights and Equality Commission to the Oireachtas Special Committee on COVID-19 Response (June 2020). See

https://www.ihrec.ie/app/uploads/2020/07/IHREC-Submission-The-Impact-of-COVID-19-on-People-with-Disabilites.pdf


https://www.ihrec.ie/covid-committee-told-significant-gaps-and-vulnerabilities-in-policy-and-services-have-resulted-in-a-disproportionate-impact-on-people-with-disabilities/


https://www.ihrec.ie/statement-from-the-irish-human-rights-and-equality-commission-in-respect-of-direct-provision/

https://www.ihrec.ie/statement-from-the-irish-human-rights-and-equality-commission-in-respect-of-direct-provision-2/

https://www.ihrec.ie/statement-from-the-irish-human-rights-and-equality-commission-in-respect-of-direct-provision-2/

https://www.ihrec.ie/app/uploads/2020/06/Comments-on-Irelands-17th-National-Report-on-the-Implementation-of-the-European-Social-Charter-June-2020-v2.pdf

https://www.ihrec.ie/app/uploads/2021/03/Submission-to-the-Joint-Committee-on-Key-Issues-affecting-the-Traveller-Community-FINAL.pdf

https://www.ihrec.ie/app/uploads/2021/03/Submission-to-the-Joint-Committee-on-Key-Issues-affecting-the-Traveller-Community-FINAL.pdf



7

Addressing Inequality in Impacts

17. The Commission has consistently stressed that while the pandemic is a challenge

for the whole country, it is impacting, and will continue to impact, different people

more acutely than others, including:

- Women; - Older people; - People with disabilities;14 - Residents in Direct Provision;15 - Members of the Traveller community;16

- Minority ethnic groups; - People living in homelessness; - People experiencing domestic violence; and - People in precarious employment.

18. COVID-19 and the response to the pandemic has both exposed and exacerbated

existing inequality in Ireland. This inequality is evidenced in the sharp divergence in

the experience of different groups in our society and, at times, a divergence in

rights. One significant disparity in rights is reflected in the treatment of people with

disabilities. As the pandemic has progressed, there has been little evidence in the

policy response that the need to balance the requirement to protect health and life,

and other rights and freedoms, has reflected the particular rights and freedoms of

people with disabilities. Instead, the COVID-19 pandemic has highlighted the limited

realisation of disabled people’s rights and given rise to significant risks of

discrimination and the undermining of rights for persons with disabilities in areas

ranging from health and wellbeing to education and employment.17

14 IHREC, The Impact of COVID-19 on People with Disabilities Submission by the Irish Human Rights and Equality Commission to the Oireachtas Special Committee on COVID-19 Response (June 2020). See also IHREC, COVID Committee Told Significant Gaps and Vulnerabilities in Policy and Services have resulted in a Disproportionate Impact on People with Disabilities (Press release, 17 July 2020). 15 IHREC, Statement from the Irish Human Rights and Equality Commission In Respect of Direct Provision (Press release, 08 May 2020); IHREC, Statement from the Irish Human Rights and Equality Commission In Respect of Direct Provision (Press release, 19 August 2020). 16 The Commission has drawn attention to how inadequate conditions on Traveller halting sites, such as the lack of running water, makes Travellers particularly vulnerable to the pandemic. See IHREC, Comments on Ireland’s 17th National Report on the Implementation of the European Social Charter (June 2020) pp. 12-13; IHREC, Submission to the Joint Committee on Key Issues affecting the Traveller Community (February 2021) pp. 17-18. 17 IHREC, The Impact of COVID-19 on People with Disabilities Submission by the Irish Human Rights and Equality Commission to the Oireachtas Special Committee on COVID-19 Response (June 2020). See

8

19. Older people, due to their particular vulnerability to the virus, and to public health

measures such as ‘cocooning’, have experienced a significant level of isolation and

dislocation from their families, and prolonged disconnection from social supports.

Many older people live in congregated settings, such as nursing homes, which have

been severely impacted by COVID-19. Another clear trend in the divergence in

experience and rights, is between men and women. Working mothers faced

disproportionately increased work-life pressures due to school and childcare

closures.18 While the increased focus and attention of the State bodies,19 in

particular AGS,20 to domestic violence during the pandemic has been welcomed by

organisations working in the area, there has been a dramatic increase in reported

domestic violence.21 This is particularly concerning, as despite ratification of the

Istanbul Convention in March 2019, there are ongoing issues with the response to

violence against women and girls. Specifically, there is limited availability,

particularly in rural locations, of reliable support services, refuge spaces, accessible

procedures, and specialised practitioners.22

20. There is also a clear divergence in rights and experience along socio-economic lines

with certain people, including:

- Children without access to technology or space for remote learning;23

also IHREC, COVID Committee Told Significant Gaps and Vulnerabilities in Policy and Services have resulted in a Disproportionate Impact on People with Disabilities (Press release, 17 July 2020). 18 European Institute for Gender Equality, COVID-19 derails gender equality gains (05 March 2021). 19 A number of promising measures and exemplary practices in Ireland in response to domestic violence have been noted by the European Institute for Gender Equality including awareness raising campaigns such as #stillhere. See European Institute for Gender Equality, The COVID-19 pandemic and intimate partner violence against women in the EU (2021). 20 Reports of the Policing Authority on COVID-19 have noted the significance and impact of Operation Faoiseamh, established by the Garda Síochána to respond to domestic violence during the pandemic. See Policing Authority, Policing Authority Assessment of Policing Performance 2020 (February 2021) pp. 9-10. 21 Provisional figures available to An Garda Síochána for 2020 indicate that under Operation Faoiseamh: Gardaí received approximately 43,000 calls to respond to domestic abuse incidents, 16% increase on 2019; there was in excess of 4000 criminal charges referred for breaches of domestic abuse court orders, up 25% on 2019; and there was in excess of 7600 criminal charges in total for crimes involving an element of domestic abuse, up 24% on 2019. See Houses of the Oireachtas, Domestic Violence: Written reply by Minister for Justice (03 March 2021). 22 See IHREC, Statement on the ratification of the Council of Europe Convention on preventing and combating violence against women and domestic violence (July 2019). 23 The COVID-19 pandemic has further reinforced the digital divide for groups experiencing existing inequalities. The digital divide has had a significant impact on access to education, as research has revealed that a gap in access to ICT was a salient issue for schools in implementing distance learning. See ESRI, Learning for all? Second-Level Education in Ireland during Covid-19 (June 2020) pp. 19-21, 32-33.



https://eige.europa.eu/news/covid-19-derails-gender-equality-gains

https://eige.europa.eu/publications/covid-19-pandemic-and-intimate-partner-violence-against-women-eu

https://eige.europa.eu/publications/covid-19-pandemic-and-intimate-partner-violence-against-women-eu

https://www.policingauthority.ie/assets/uploads/documents/Policing_Authority_Assessment_of_Policing_Performance_2020.pdf

https://www.kildarestreet.com/wrans/?id=2021-03-03a.1830&s

https://www.kildarestreet.com/wrans/?id=2021-03-03a.1830&s

https://www.ihrec.ie/app/uploads/2019/06/Statement-on-Ratification-of-CoE-Convention-on-Preventing-and-Comating-Violence-Against-Women-and-Domestic-Violence.pdf

https://www.ihrec.ie/app/uploads/2019/06/Statement-on-Ratification-of-CoE-Convention-on-Preventing-and-Comating-Violence-Against-Women-and-Domestic-Violence.pdf

https://www.esri.ie/system/files/publications/SUSTAT92_3.pdf

9

- People living in overcrowded accommodation, including Direct Provision centres;

- Travellers and Roma; and - Those in precarious employment, experiencing the impact of the pandemic

more acutely.

21. Furthermore, of particular concern to the Commission is the relaxation of

procedural safeguards for detention on mental health grounds under Part V of the

Emergency Measures in the Public Interest (COVID-19) Act 2020.

Human Rights and Equality Capacity and Scrutiny

22. The pandemic has highlighted concerning gaps in transparency and in our systems

of democratic accountability.24 The response to the pandemic has revealed a lack of

human rights and equality expertise in the decision-making structures put in place

to tackle the pandemic, or in the systems that implement and scrutinise these

decisions. Shifting relationships between the Government and the National Public

Health Emergency Team (NPHET), and limited opportunities for Oireachtas

oversight have made it difficult to ascertain where, if at all, human rights and

equality concerns are being addressed. Among the findings of the report Ireland’s

Emergency Powers During the COVID-19 Pandemic is that:

“it is difficult to avoid the conclusion that the delegation of legislative power to

the Minister for Health has resulted in a black hole for the consideration of

human rights and equality concerns.”25

23. Parliamentary scrutiny of Ireland’s emergency legislation, regulations and their

impact has not been particularly effective.26 The fact that the Minister of Health

introduced restrictions on rights through regulations, made it difficult to maintain

effective democratic oversight over the use of emergency measures. Further, there

was a lack of any structure within the Oireachtas for parliamentarians to engage

with human rights and equality norms.

24 See IHREC/COVID-19 Law and Human Rights Observatory, Ireland’s Emergency Powers During the Covid-19 Pandemic (February 2021). 25 IHREC/COVID-19 Law and Human Rights Observatory, Ireland’s Emergency Powers During the Covid-19 Pandemic (February 2021) p. 62. 26 IHREC/COVID-19 Law and Human Rights Observatory, Ireland’s Emergency Powers During the Covid-19 Pandemic (February 2021).







9

- People living in overcrowded accommodation, including Direct Provision centres;

- Travellers and Roma; and - Those in precarious employment, experiencing the impact of the pandemic

more acutely.

21. Furthermore, of particular concern to the Commission is the relaxation of

procedural safeguards for detention on mental health grounds under Part V of the

Emergency Measures in the Public Interest (COVID-19) Act 2020.

Human Rights and Equality Capacity and Scrutiny

22. The pandemic has highlighted concerning gaps in transparency and in our systems

of democratic accountability.24 The response to the pandemic has revealed a lack of

human rights and equality expertise in the decision-making structures put in place

to tackle the pandemic, or in the systems that implement and scrutinise these

decisions. Shifting relationships between the Government and the National Public

Health Emergency Team (NPHET), and limited opportunities for Oireachtas

oversight have made it difficult to ascertain where, if at all, human rights and

equality concerns are being addressed. Among the findings of the report Ireland’s

Emergency Powers During the COVID-19 Pandemic is that:

“it is difficult to avoid the conclusion that the delegation of legislative power to

the Minister for Health has resulted in a black hole for the consideration of

human rights and equality concerns.”25

23. Parliamentary scrutiny of Ireland’s emergency legislation, regulations and their

impact has not been particularly effective.26 The fact that the Minister of Health

introduced restrictions on rights through regulations, made it difficult to maintain

effective democratic oversight over the use of emergency measures. Further, there

was a lack of any structure within the Oireachtas for parliamentarians to engage

with human rights and equality norms.

24 See IHREC/COVID-19 Law and Human Rights Observatory, Ireland’s Emergency Powers During the Covid-19 Pandemic (February 2021). 25 IHREC/COVID-19 Law and Human Rights Observatory, Ireland’s Emergency Powers During the Covid-19 Pandemic (February 2021) p. 62. 26 IHREC/COVID-19 Law and Human Rights Observatory, Ireland’s Emergency Powers During the Covid-19 Pandemic (February 2021).

10

24. Greater scrutiny and human rights proofing of regulations, including through the

establishment of a Joint Oireachtas Committee on Equality, Human Rights and

Diversity is recommended. The Commission has called for the establishment of a

dedicated Oireachtas Committee on Human Rights, Equality and Diversity since

2016. In the context of COVID-19, a dedicated Oireachtas Committee on Human

Rights, Equality and Diversity would provide close parliamentary oversight of the

implementation of emergency legislation introduced in response to COVID-19, and

the equality and human rights implications of COVID-19.27

Participation and Information

25. It is of concern that there has been a notable lack of participation in the decision-

making process of groups likely to be particularly impacted by legislation and its

enforcement.28 The principle of participation requires the active and informed

participation of individuals in the development, implementation and monitoring of

legislative, executive and administrative decisions that concern them.29 The

Commission previously highlighted concerns around accessibility of information

and active early engagement of disabled people through their representative

Disabled Persons Organisations.30 The Commission is of the view that the response

to the pandemic necessitated early and active engagement with marginalised and at

risk groups – including persons with disabilities, older people, residents in Direct

27 IHREC, Statement from the Irish Human Rights and Equality Commission on COVID-19 Oversight in Respect of Human Rights and Equality (Press release, 27 April 2020). See also IHREC, Submission to the Special Committee on COVID-19 Response Regarding the Adequacy of the State's Legislative Framework to Respond to COVID-19 Pandemic and Potential Future National Emergencies (September 2020) p. 2. 28 The right to participate in public life is recognised under Article 25 of the International Covenant on Civil and Political Rights, Article 5 (c) of the International Convention on the Elimination of All Forms of Racial Discrimination, Article 7 of the Convention on the Elimination of All Forms of Discrimination against Women, Articles 12 and 23 (1) of the Convention on the Rights of the Child, and Article 4 (3) and Article 33 (3) of the Convention on the Rights of Persons with Disabilities. 29 See guidance in United Nations Office of the High Commissioner for Human Rights, Guidelines for States on the effective implementation of the right to participate in public affairs (2018). 30 As required under Article 4 (3) of the Convention on the Rights of Persons with Disabilities. See guidance in Committee on the Rights of Persons with Disabilities, General comment No. 7 (2018) on the participation of persons with disabilities, including children with disabilities, through their representative organizations, in the implementation and monitoring of the Convention (9 November 2018) CRPD/C/GC/7. See also IHREC, The Impact of COVID-19 on People with Disabilities Submission by the Irish Human Rights and Equality Commission to the Oireachtas Special Committee on COVID-19 Response (June 2020) p. 9.






https://www.ohchr.org/Documents/Issues/PublicAffairs/GuidelinesRightParticipatePublicAffairs_web.pdf

https://www.ohchr.org/Documents/Issues/PublicAffairs/GuidelinesRightParticipatePublicAffairs_web.pdf

https://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqhKb7yhsnbHatvuFkZ%2bt93Y3D%2baa2pjFYzWLBu0vA%2bBr7QovZhbuyqzjDN0plweYI46WXrJJ6aB3Mx4y%2fspT%2bQrY5K2mKse5zjo%2bfvBDVu%2b42R9iK1p






11

Provision, members of the Traveller community, people living in homelessness,

people experiencing domestic violence, and people in precarious employment – to

identify communication issues and to alleviate any concerns or risks.31

26. In August 2020, the Commission published a Guidance Note for public bodies on the

implementation of the Public Sector Equality and Human Rights Duty during the

COVID-19 pandemic.32 The Commission highlighted the importance to public

bodies of ensuring that all sections of society have access to information on the

response to COVID-19, and that measures must be taken to ensure information is

adapted to the specific needs of certain audiences, including children, persons with

disabilities and minority ethnic groups.33

Concluding Comments

27. The pandemic has posed an unprecedented and complex set of challenges to both

State and society. Thousands of people have lost their lives and many more have

experienced severe illness, while hundreds of thousands have seen their livelihoods

affected. Many more have seen essential services, support mechanisms and

community structures, on which they rely, stripped away and severely curtailed by

the pandemic, and by the measures put in place to tackle it.

28. The Commission is committed to continuing its work to independently scrutinise

the State’s approach to the pandemic. Many, if not most fundamental societal

challenges laid bare by the pandemic – systemic inequality, the strains on our social

harmony, the serious gaps in democratic scrutiny and accountability – will not fade

away as the virus does. The way in which State and society meet these challenges

31 The Commission previously expressed this concern to the Oireachtas Special Committee on Covid-19 Response. IHREC, Submission to the Special Committee on COVID-19 Response Regarding the Adequacy of the State's Legislative Framework to Respond to COVID-19 Pandemic and Potential Future National Emergencies (September 2020) p. 5. The World Health Organisation has stated that not paying explicit attention to the needs and vulnerabilities faced by certain groups’ subjects them to a higher risk of infection and undermined the broader COVID-19 response, and causes unintended difficulties and consequences. See World Health Organisation, Addressing human rights as key to the COVID-19: response (21 April 2020). 32 IHREC, Guidance Note – COVID-19 and the Public Sector Equality and Human Rights Duty (August 2020). 33 IHREC, Guidance Note – COVID-19 and the Public Sector Equality and Human Rights Duty (August 2020) p. 5.




https://apps.who.int/iris/handle/10665/331811

https://apps.who.int/iris/handle/10665/331811

https://www.ihrec.ie/documents/guidance-note-covid-19-and-the-public-sector-equality-and-human-rights-duty/

https://www.ihrec.ie/documents/guidance-note-covid-19-and-the-public-sector-equality-and-human-rights-duty/

11

Provision, members of the Traveller community, people living in homelessness,

people experiencing domestic violence, and people in precarious employment – to

identify communication issues and to alleviate any concerns or risks.31

26. In August 2020, the Commission published a Guidance Note for public bodies on the

implementation of the Public Sector Equality and Human Rights Duty during the

COVID-19 pandemic.32 The Commission highlighted the importance to public

bodies of ensuring that all sections of society have access to information on the

response to COVID-19, and that measures must be taken to ensure information is

adapted to the specific needs of certain audiences, including children, persons with

disabilities and minority ethnic groups.33

Concluding Comments

27. The pandemic has posed an unprecedented and complex set of challenges to both

State and society. Thousands of people have lost their lives and many more have

experienced severe illness, while hundreds of thousands have seen their livelihoods

affected. Many more have seen essential services, support mechanisms and

community structures, on which they rely, stripped away and severely curtailed by

the pandemic, and by the measures put in place to tackle it.

28. The Commission is committed to continuing its work to independently scrutinise

the State’s approach to the pandemic. Many, if not most fundamental societal

challenges laid bare by the pandemic – systemic inequality, the strains on our social

harmony, the serious gaps in democratic scrutiny and accountability – will not fade

away as the virus does. The way in which State and society meet these challenges

31 The Commission previously expressed this concern to the Oireachtas Special Committee on Covid-19 Response. IHREC, Submission to the Special Committee on COVID-19 Response Regarding the Adequacy of the State's Legislative Framework to Respond to COVID-19 Pandemic and Potential Future National Emergencies (September 2020) p. 5. The World Health Organisation has stated that not paying explicit attention to the needs and vulnerabilities faced by certain groups’ subjects them to a higher risk of infection and undermined the broader COVID-19 response, and causes unintended difficulties and consequences. See World Health Organisation, Addressing human rights as key to the COVID-19: response (21 April 2020). 32 IHREC, Guidance Note – COVID-19 and the Public Sector Equality and Human Rights Duty (August 2020). 33 IHREC, Guidance Note – COVID-19 and the Public Sector Equality and Human Rights Duty (August 2020) p. 5.

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will be a measure of how durable Ireland’s commitment is to human rights and

equality.

26th May 2021ASSOCIATION OF GARDA SERGEANTS & INSPECTORS

AGSI SUBMISSION


CL_05

26th May 2021ASSOCIATION OF GARDA SERGEANTS & INSPECTORS

AGSI SUBMISSION


CL_05

1

1. Background

1.1 On the 11th March 2020 the Director General of the World Health

Organisation declared COVID-19 a global pandemic. The effect in Ireland

was immediate with schools, colleges, childcare facilities and cultural

institutions being closed, large gatherings cancelled, and followed by the

closure of pubs, businesses, and the restrictions on the movement of

people.

2. Introduction

2.1 On the 16th March 2020, the Garda Commissioner notified the Garda Staff

Associations that a policing requirement was needed and that with

immediate effect all members would be moved from regular policing duties

onto an emergency COVID Roster, moving from the mainly 6 days on 4

days off 10 hour shift pattern to a 12 hour 4 days on 4 days off shift

pattern. 2.2 The shift pattern would also mean the movement of AGSI from roles such

as CPD, Garda College, Traffic and other non-core units onto the 12-hour

shift to maximise the availability of available personnel. 2.3 With no objections, overnight notice, and with considerable disruption to

family life, childcare and carer arrangements, members agreed and

moved immediately to the shift patterns as set out by the Garda

Commissioner in an effort to meet the requirements of policing the Covid-

19 pandemic.

3. Justice Committee Questions The Justice Committee have posed a number of questions in seeking to

establish if the appropriate balance between the fundamental rights of citizens

and the States duty to protect public health was struck during the Covid-19

pandemic. Many of these questions relate to political decisions and as such it

2

would be inappropriate for AGSI to comment on. We have a particular interest

in Question 8 and will set out a response below.

3.1 The first question posed by the Joint Justice Committee is as follows.

Q1. ‘Whether the restrictions were necessary and proportionate and in the common good’ In response to this, you will appreciate that as AGSI were not part of the

decision-making process regarding the restrictions, however it is generally

viewed that the restrictions were necessary. However as regards their

proportionality, this merits a wider debate and discussion and as we do not

fully understand the rational used for the introduction of various restrictions,

we cannot speculate on this.

3.2 The next question related to ‘The flexibility of the system to respond efficiently and effectively to an everchanging situation while balancing the fundamental rights of citizens’.

In response to this, we are unsure of what ‘system’ you are referring to so

would need further clarity on what is meant here. 3.3 Question 3 was on ‘The restrictions to freedom of movement and

freedom of assembly based on the need for public safety’. In response to this, you will appreciate that as AGSI were not part of the

decision-making process with regard to the restrictions and are always

conscious of the Constitutional Rights of members of the public. However we

can reference the Grafton Street protest on the 27th February where the right

to protest and the policing requirement were severely tested and the

deliberate firing of a missile at Gardai showed the dangerous and hostile

environment that can emerge from such protests.

3.4 The 4th question asked, ‘Was there sufficient engagement to ensure public support for the necessary introduction of regulations in the interest of public health?’

2

would be inappropriate for AGSI to comment on. We have a particular interest

in Question 8 and will set out a response below.

3.1 The first question posed by the Joint Justice Committee is as follows.

Q1. ‘Whether the restrictions were necessary and proportionate and in the common good’ In response to this, you will appreciate that as AGSI were not part of the

decision-making process regarding the restrictions, however it is generally

viewed that the restrictions were necessary. However as regards their

proportionality, this merits a wider debate and discussion and as we do not

fully understand the rational used for the introduction of various restrictions,


3.2 The next question related to ‘The flexibility of the system to respond efficiently and effectively to an everchanging situation while balancing the fundamental rights of citizens’.

In response to this, we are unsure of what ‘system’ you are referring to so

would need further clarity on what is meant here. 3.3 Question 3 was on ‘The restrictions to freedom of movement and

freedom of assembly based on the need for public safety’. In response to this, you will appreciate that as AGSI were not part of the

decision-making process with regard to the restrictions and are always

conscious of the Constitutional Rights of members of the public. However we

can reference the Grafton Street protest on the 27th February where the right

to protest and the policing requirement were severely tested and the

deliberate firing of a missile at Gardai showed the dangerous and hostile

environment that can emerge from such protests.

3.4 The 4th question asked, ‘Was there sufficient engagement to ensure public support for the necessary introduction of regulations in the interest of public health?’

3

In response to this, there was no engagement of any kind by Government with

Garda Staff Associations. While the short time frame at the beginning of the

pandemic required urgent decision making, as we moved through the initial

weeks of the pandemic there was adequate opportunity for engagement by

Government and AGSI believe there was a missed opportunity here.

3.5 The 5th Question asked about ‘The benefits and possible risks of the proposed introduction of an ‘EU digital green certificate’.

In response to this, you will appreciate that as AGSI were not part of the

decision-making process with regard to matters such as these, and therefore


3.6 Question 6 focuses on Mandatory hotel quarantine and inter-county travel restrictions to protect public health versus freedom of movement. In response to this, you will appreciate that as AGSI were not part of the

decision-making process with regard to these restrictions we cannot speculate

on this.

3.7 Question 7 asks ‘Does legislation/regulations, underpinning of current restrictions, contain adequate ‘sunset clauses’ to ensure that there is a clear endpoint to such measures.

In response to this, you will appreciate that as AGSI were not part of the

decision-making process with regard to the introduction of

legislation/regulations, however we express the view that all emergency

legislation should have clear endpoints when introduced.

3.8 Question 8 asks ‘Was there adequate resourcing and training given to members of the Garda Siochana to enable them to ensure adherence with the regulations/legislation’.

The Covid Pandemic, as stated in the introduction, was declared a Global

pandemic in March 2020. This was followed shortly in An Garda Siochana

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with the declaration by the Garda Commissioner of the classification of the

pandemic an ‘Exceptional Event’. This is defined within the Garda

Organisation as ‘being a natural or technological disaster, attacks, serious

accidents or similar events. They shall be of a gravity and scale which

requires the adoption of measures indispensable for the protection of life,

and the health and safety of the community at large, and the proper

implementation of measures designed to protect the community at large.

In the case of an exceptional event members will give absolute priority to

the achievement of those measures. Exceptional Events are not

predictable and cannot be foreseen’.

Such a declaration by the Garda Commissioner is understood by

members serving in the Organisation, that the ‘exigencies of the service’,

would require them to respond to a policing requirement outside of the

norm and the AGSI and its members were steadfast in its response to

support the Garda Commissioner and the policing requirements to stop

the spread of the Covid-19 virus.

Immediate high visibility patrolling began, and a particular focus was put

on supporting the elderly and vulnerable in Communities. Additional

‘community-based patrol cars’ were provided to the Organisation and

these, along with the extra re-deployed personnel proved an invaluable

resource in allowing gardai to do what they do best, interacting with

Communities, delivering groceries and prescriptions, assisting in small

domestic chores for elderly people living alone, checking on relatives for

people who could not visit their own families, and having many a

reassuring social distance chat. No training was needed for these tasks,

as they are embedded in the culture and ethos of the Gardai ‘to protect

and serve’ and are part of what most Gardai aspire to do when time,

resources and situations allow. 24hr static checkpoints were established

on designated arterial routes as well as overt patrolling on foot and

vehicles and again while no specific training was provided for this,

members were generally aware of what they were required to do.

4

with the declaration by the Garda Commissioner of the classification of the

pandemic an ‘Exceptional Event’. This is defined within the Garda

Organisation as ‘being a natural or technological disaster, attacks, serious

accidents or similar events. They shall be of a gravity and scale which

requires the adoption of measures indispensable for the protection of life,

and the health and safety of the community at large, and the proper

implementation of measures designed to protect the community at large.

In the case of an exceptional event members will give absolute priority to

the achievement of those measures. Exceptional Events are not

predictable and cannot be foreseen’.

Such a declaration by the Garda Commissioner is understood by

members serving in the Organisation, that the ‘exigencies of the service’,

would require them to respond to a policing requirement outside of the

norm and the AGSI and its members were steadfast in its response to

support the Garda Commissioner and the policing requirements to stop

the spread of the Covid-19 virus.

Immediate high visibility patrolling began, and a particular focus was put

on supporting the elderly and vulnerable in Communities. Additional

‘community-based patrol cars’ were provided to the Organisation and

these, along with the extra re-deployed personnel proved an invaluable

resource in allowing gardai to do what they do best, interacting with

Communities, delivering groceries and prescriptions, assisting in small

domestic chores for elderly people living alone, checking on relatives for

people who could not visit their own families, and having many a

reassuring social distance chat. No training was needed for these tasks,

as they are embedded in the culture and ethos of the Gardai ‘to protect

and serve’ and are part of what most Gardai aspire to do when time,

resources and situations allow. 24hr static checkpoints were established

on designated arterial routes as well as overt patrolling on foot and

vehicles and again while no specific training was provided for this,

members were generally aware of what they were required to do.

5

Supervisors took up the mantle during pre-tour briefings to update and

provide ‘on the job’ training to colleagues on the new elements of

regulations which required their attention.

Garda College training for new entrants was moved to a shorter on-line

model, and new entrants were moved swiftly to the front line to assist in

the policing requirements. All other training within the Garda Organisation

was suspended with as many personnel as possible moved to the front

line to assist in the 12-hour shifts. The interruption to training placed

further responsibility and pressure on Sergeants and Inspectors who had

to take on the burden of reading, disseminating, and instructing Gardai on

new and additional powers. The Regulations were frequently lengthy,

complex in nature and required deep reading to understand and

implement same. As the supervisory rank, this fell mainly to the members

of AGSI, who highlighted the need for clear Organisational instructions on

what elements of the Regulations were enforceable or not. While some

assistance was provided from the Garda Siochana’s ‘Covid’ Unit, by way

of Organisational Instructions on the Garda Portal this was not sufficient

and required the input of Sergeants and Inspectors to ensure its proper

dissemination to colleagues.

Regulations and Statutory Instruments followed in the weeks and months

after the declaration of the pandemic and with no formal training of any

kind provided to members of An Garda Siochana and AGSI. However, the

4E’s approach, to Engage, Explain, Encourage and as a last resort

Enforce Regulations was quickly understood by members and as

Supervisors, we constantly reminded our colleagues that our interactions

with the public must be fair, reasonable, equitable and respected the

human rights of all persons and that engagement was a key element in

seeking the co-operation of the public.

As an Association however, we were deeply concerned at times to hear of

planned pieces of legislation debated through the National airwaves and

media that would impact the membership we represent and pose

6

challenges to the well-established Garda power that exist. These included

suggestions the Gardai could enter people’s homes to check if they were

‘quarantining’ and matters relating to house parties and gatherings in

people’s private dwellings. We provided clarity as best we could that the

Constitutional rights of citizens must always be protected and that can

only be changed in accordance with law, however as an Organisation and

an Association we are apolitical and could not enter into public political

debate on matters. Of primary concern to us was the impact of the

pandemic on the health and safety of our members. This was particularly

relevant when the Mandatory Hotel Quarantining was introduced by

Government and the Garda role, while downplayed at first became

obvious very quickly when difficulties emerged. Of particular concern here

was the lack of vaccinations for Gardai assigned to deal with this duty

particularly when it emerged that all other parties involved in the process

were vaccinated. This again was an area where much more could have

been done much quicker to protect Gardai who felt very vulnerable in this

high risk environment.

The establishment of the Divisional Protected Services Units prior to the

pandemic proved invaluable in their ability to make regular contact with

victims of domestic abuse to provide reassurance and support, as well as

progress investigations and AGSI used every opportunity through their

own internal communications, media and social media to remind

colleagues that the Regulations and travel restrictions did not apply to

victims of domestic violence.

As regards resources, the matter of PPE and the availability of same

became an immediate issue of concern for the Garda Staff Associations

and throughout the first number of weeks members were reporting issues

around the lack of basic PPE such as hand sanitiser and masks. These

however did become available but more serious matters like priority

testing for Gardai remained a real concern with no special arrangements

put in place for Gardai who had been in contact with suspected COVID

members of the public. Of particular concern and distress was the large

6

challenges to the well-established Garda power that exist. These included

suggestions the Gardai could enter people’s homes to check if they were

‘quarantining’ and matters relating to house parties and gatherings in

people’s private dwellings. We provided clarity as best we could that the

Constitutional rights of citizens must always be protected and that can

only be changed in accordance with law, however as an Organisation and

an Association we are apolitical and could not enter into public political

debate on matters. Of primary concern to us was the impact of the

pandemic on the health and safety of our members. This was particularly

relevant when the Mandatory Hotel Quarantining was introduced by

Government and the Garda role, while downplayed at first became

obvious very quickly when difficulties emerged. Of particular concern here

was the lack of vaccinations for Gardai assigned to deal with this duty

particularly when it emerged that all other parties involved in the process

were vaccinated. This again was an area where much more could have

been done much quicker to protect Gardai who felt very vulnerable in this

high risk environment.

The establishment of the Divisional Protected Services Units prior to the

pandemic proved invaluable in their ability to make regular contact with

victims of domestic abuse to provide reassurance and support, as well as

progress investigations and AGSI used every opportunity through their

own internal communications, media and social media to remind

colleagues that the Regulations and travel restrictions did not apply to

victims of domestic violence.

As regards resources, the matter of PPE and the availability of same

became an immediate issue of concern for the Garda Staff Associations

and throughout the first number of weeks members were reporting issues

around the lack of basic PPE such as hand sanitiser and masks. These

however did become available but more serious matters like priority

testing for Gardai remained a real concern with no special arrangements

put in place for Gardai who had been in contact with suspected COVID

members of the public. Of particular concern and distress was the large 7

number of times members were spat at with blood or saliva, and this was

particularly distressing and difficult for members to deal with physically

and emotionally. No safe places for gardai to isolate were provided, and

members were left with no choices but to return to family homes or other

locations where there were genuine fears of spreading to elderly family or

relatives. As an Association we feel more could have been done for

Gardai in the areas of priority testing, vaccinations and places to isolate

away from family when they had been in contact with suspected COVID

positive people. Christmas and January 2021were particularly challenging

with a large amount of the Garda workforce absent on COVID related

issues and again members were very concerned about themselves and

their families.

Finally in this question, we mention the concern that the Regulations

became viewed as ‘Garda Regulations’ and would ask was enough done

to publicly remind people that they were in fact Health Regulations for a

specific purpose and that they would cease when the requirement was no

longer needed. This we believe was and still is necessary to protect the

relationship between the gardai and the public and uphold the model of

‘policing by consent’ which is of the utmost importance.

3.9 Question 9 seeks ‘to examine the adequacy and accountability of the supervisory functions of the Oireachtas in respect of the making of regulations and the assessment of their effectiveness’. We feel it would be inappropriate for AGSI to comment on this.

4. Conclusion. Policing the COViD-19 pandemic was one of the biggest policing

requirements made from AGSI members. All of them unquestionably and

immediately committed to support the Garda Commissioner and the

Government in its efforts to stop the spread of the virus and do whatever was

required of them in this regard. They adapted in the most challenging of

8

circumstances and took on the raft of new Regulations and Legislation and

were mindful at all times to ensure that enforcement was as a last resort only.

The adaptability and flexibility of members was proven again and again and

the Community Based Policing approach was forefront in the minds of AGSI

members who led by example with colleagues to ensure the protection of the

most vulnerable in Communities. The ‘esprit de corps’ and can-do attitude

prevailed during the 12-hour checkpoints, protests and other challenging

environments the AGSI members found themselves in.

However, AGSI and its membership believes that there is further discussion

needed around the COVID 19 Pandemic and matters such as emergency

powers and the challenges faced by Gardai ,the provision of PPE, priority

testing and vaccinations, and while we have touched on some of these in our

submission, we would welcome the opportunity to discuss them further with

the Justice Committee at a meeting.

8

circumstances and took on the raft of new Regulations and Legislation and

were mindful at all times to ensure that enforcement was as a last resort only.

The adaptability and flexibility of members was proven again and again and

the Community Based Policing approach was forefront in the minds of AGSI

members who led by example with colleagues to ensure the protection of the

most vulnerable in Communities. The ‘esprit de corps’ and can-do attitude

prevailed during the 12-hour checkpoints, protests and other challenging

environments the AGSI members found themselves in.

However, AGSI and its membership believes that there is further discussion

needed around the COVID 19 Pandemic and matters such as emergency

powers and the challenges faced by Gardai ,the provision of PPE, priority

testing and vaccinations, and while we have touched on some of these in our

submission, we would welcome the opportunity to discuss them further with

the Justice Committee at a meeting.

Policing Authority Submission to the Joint Oireachtas Committee on Justice

Balance between the fundamental rights of citizens and the State's duty to protect public health during

the Covid‐19 pandemic

28 May 2021

CL_06(1)

Policing Authority submission to the Joint Oireachtas Committee on Justice – 28 May 2021

1

Introduction 1. The last time we faced a pandemic of this magnitude and ubiquity, the political, social and

regulatory infrastructure of this State was not even in place and the development of thinking on Human Rights was in its infancy. It is unsurprising that the Government’s response to ensure the health and wellbeing of the people through the restrictions imposed, the curtailment of individual freedoms and the introduction of sweeping new powers to the Garda Síochána would not be without its challenges.

2. The Authority welcomed the request by the Minister for Justice for it to assess and to report on the application of the extraordinary regulations and powers conferred on the Garda Síochána. It is important for public confidence that such scrutiny is undertaken distinctively independent of government and the police service. The Authority was well positioned to provide external, transparent and evidence led scrutiny of policing to give confidence that emergency restrictions were being used legally, proportionately and reasonably

Oversight Framework 3. It is the strong view of the Authority that as the powers given to the Garda Síochána further

encroach on peoples’ liberties and rights that oversight of policing should assume a concomitant greater significance.

4. To achieve this, the oversight framework put in place by the Authority in early 2020 as a response to the extraordinary circumstances then emerging and which continues today includes:

Placing human rights and ethics at the centre of its oversight;

Timely and frequent engagement with the Garda Commissioner and his senior colleagues;

Establishing parameters of reporting to ensure that sufficient information is available to allow for comprehensive oversight;

Discussion at Committee and Authority meetings with the Garda Síochána to ensure mutual understanding of the challenges, processes, governance and reporting in the Garda Síochána and for the Authority.

Public meetings to ensure the public has an opportunity to hear and understand the challenges arising;

Engagement with stakeholders such as statutory bodies, NGOs and civil society to understand the challenges presented to particular groups and to appreciate their experience of the policing service at this time; and,

Environmental analysis in terms of crime trends and media trends as they reflect public concerns.

5. The articulation of the findings from this framework of oversight can be found in the series of 14 published Covid‐19 reports that the Authority has prepared for the Minister for Justice since April 2020. These reports give detailed consideration to the use of the emergency powers and


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the use of force by the Garda Síochána, the wellbeing of Garda members and the issues raised through the Authority’s continuing rich engagement with statutory, voluntary and civil society organisations across the country. The most recent of these reports (dated 17 May 2021) is provided for reference.

The Impact of Oversight 6. The Authority is of the view that its oversight – through the timely publication of reports on

policing activity and outcomes and engagement with the Garda Commissioner and management colleagues in public – has had a positive impact during this period. The Authority’s approach to oversight sought to extend beyond a description of the policing activities undertaken and to understand the experience of policing and being policed during this period. A key element was also then to reflect and engage with the police service in real time on the outcomes of that work so that the positives could be acknowledged and reinforced and any issues expeditiously addressed. This has served to:

Encourage greater consistency of application of the new powers conferred on the Garda Síochána, its use of the graduated “Four E’s” approach that was successfully adopted and continued discretion by members recognising that for them and for members of the public the restrictions imposed while necessary were extensive and without precedent;

Increase the transparency of the actions of the Garda Síochána, including through for example the publication of data on the number of enforcement actions undertaken, the number of fines issued and the number of times anti‐spit hoods were deployed;

Promote the welfare of Garda members for example by highlighting the difficult working conditions faced by those in the front line, inquiring about the PPE and training available to members and publicising the number of times deplorable spitting assaults were carried out on members;

Endorse and publicly commend the agile and effective response to heightened levels of domestic abuse through the implementation of Operation Faoiseamh and the actions of the Domestic Protection Services Units;

Highlight the extensive “reaching‐in” by the Garda Síochána as it engaged more fully in local community policing and adopted a new “tone” with a range of community advocates and representative groups.

Learning for the Future 7. The oversight activities of the Authority also provided a platform to examine a number of issues

raised by the response to Covid‐19 that may have wider more systemic and longer lasting impacts:

Recording the use of powers ‐ The Authority highlighted, early on, to the Commissioner a desire to be able to give a clear indication of the extent to which of the five separate powers created by the amendment to the 1947 Health Act were exercised by members and to be


3

able to offer a view on the extent to which their use was consistent, appropriate and proportionate. While a lot of data was provided with regard to enforcement and arrest the Garda Síochána was unable to supply data with regard to those occasions when a Garda directed a person and that direction was complied with. Such directions must be considered to be a use of an emergency statutory power but do not appear to be recorded where they are followed by compliance. The Authority was therefore unable to fully report on the exercise of the power as we would have wished, because the necessary information on which to make such a report and to found such a judgement, was not recorded by the Garda Síochána. This in turn led to a wider discussion around the collection and recording of data and in particular to the conversation about recording ethnic data to ensure proportionality and fairness. This has prompted the Garda Síochána to re‐examine the legislative and operational requirement for the collection of such data.

Inconsistent policing – Complete uniformity, nationally, in the delivery of policing services, given the uniquely peculiar circumstances that lead to and context within which incidents arise while aspirational is not practicable. This is made more complex by the ability of individual Gardaí to exercise their discretion as required. Nevertheless over the last 15 months there have been some striking examples, albeit a relatively small number, of the inconsistent application of powers across by the Garda Síochána across the State ranging for example the recent relatively light touch treatment of the impromptu ‘beach party’ in Galway compared to the treatment of a gathering of Debenhams workers in Dublin last year. The Authority has spoken with the Commissioner on this precise issue on several occasions noting that the even with the exceptional circumstances consistency of approach is necessary to ensure fairness, compliance with and trust in the Garda Síochána.

Engagement with diverse groups – As noted, the Authority’s outreach across many diverse communities has elicited a remarkably positive experience of policing during the emergency. But no set of actions will ever be universally experienced in precisely the same way. There are communities where the relationship with the Garda Síochána has not been as would have been wished and the important aspect of the “tone” of the engagement has been poor (for example among Travellers, students and young people, in particular young people of colour). Giving expression to these views, perceptions and experiences is not to question or negate the experiences of others but to give a richer sense of the differing ways in which policing can be experienced and perceived. It is necessary that we should appreciate these differing perspectives, welcome the evidence that the outreach unfolds and value the greater understanding that will result. The Authority continues to engage with the Commissioner on the lessons to be learned and has initiated a more detailed programme of work to examine how policing is experienced across diverse communities. This is outlined in more detail below.

Community policing ‐ The importance of relationships as the foundation of community policing have been a strong and consistent feature of the Authority’s engagement with community organisations and NGOs as well as its engagement with Garda senior management and rank and file members. There is an apprehension expressed both by community groups and the Gardaí that the time and resources required to nurture and maintain relationships within the community could be negatively affected with the return of


4

more ‘normal’ conditions. There is, however, a strong desire on the part of both to find ways to preserve the community‐oriented working undertaken over the last fifteen months as a more permanent foundation of daily policing. Equally, there is a better understanding that presence and closeness to communities is for some a necessary precursor to community confidence in policing.

Organisational agility – The extraordinary response of the Garda Síochána to reprioritise activities and redeploy staff, most notably during the second wave when resources were stretched to the limit, demonstrates the capacity of the organisation for agility and change. The Authority has engaged with the Commissioner on this aspect of the organisation’s response and is encouraging the adoption of the same approach as it implements the various reforms and organisational changes identified in order to deliver the vision of a policing service for the future.

Policing Diverse Communities 8. Ireland has always had a somewhat diverse society given the significance of Irish Travellers (who

are an indigenous minority, recently recognised in law as a distinct ethnic group, with distinct cultural values and way of life) and the co‐existence of a rich variety of religious traditions.

9. In the last two decades, Ireland has become even more diverse and multicultural, with over 500,000 non‐Irish nationals, over 100,000 persons with dual Irish nationality and over 130,000 mixed Irish and non‐Irish households in the country. Currently, almost 12% of the people living in Ireland have a nationality other than Irish and the country is experiencing a growing second and third generation of Irish children of immigrants. This change in cultural pluralism has brought with it a growing diversity in other terms.

10. Like all public bodies the Garda Síochána have statutory obligations under Section 42 of the Irish Human Rights and Equality Commission Act 2014 to account for their actions to address the human rights and equality impact of their work as it relates to members of the public, people who use their services, and their staff. The Garda Síochána addresses diversity by way of two separate strategies:

An internal facing strategy ‐ Equality, Diversity and Inclusion ‐ Strategy Statement & Action Plan 2020‐2021 to addresses diversity in the workforce of the Garda Síochána; and,

An external facing strategy ‐ Diversity and Integration Strategy 2019‐20215 which addresses issues of policing a diverse population. In addition to encouraging the reporting of hate crimes (for which no legal definition exists but for which the Garda Síochána has developed a welcome operational definition), this strategy includes various objectives and initiatives aimed at the engagement with and protection of members of diverse and minority communities, including the building and maintenance of strong relationships with key stakeholders from diverse groups and enhancing communications with members of diverse and minority groups and the key stakeholders amongst them.


5

11. Furthermore, the Garda Síochana Act 2005 requires that policing services are to be provided by the Garda Síochana in a manner that respects human rights and with the objective of vindicating the human rights of each individual.

12. Policing diverse communities poses a challenge to all police services around the world. It involves a mixture of complex issues including societal biases, prejudice, language barriers, different cultural practices and beliefs, and historical experiences with law enforcement. These have an impact on the volume and nature of interactions between the police and members of diverse communities (‘under‐policing’ or ‘over‐policing’, profiling), which in turn can affect levels of trust and confidence in the police, perception of police legitimacy and cooperation with officers. The research literature strongly suggests that members of diverse and minority groups, which also includes racial minorities, have lower levels of trust in the police, and tend to evaluate the police negatively and as biased1.

13. As outlined earlier the outreach work of the Authority over the last fifteen months has highlighted the way members of diverse communities are experiencing policing and the extent to which the delivery of policing services to different communities has been somewhat inconsistent. In addition to discussing this issue regularly with the Commissioner, the Policing Authority is engaged in oversight of the work of the Garda Síocha na with regard to the implementation of the Diversity and Integration Strategy. As part of this oversight the Authority will shortly commission independent research to achieve a better understanding of the way members of diverse communities in Ireland are currently experiencing and perceiving policing and to examine issues such as:

the nature and quality of the experience of policing in different communities;

the degree to which the experience is in line with the Garda Síochána obligations under Section 42 of the IHREC Act and its own Diversity & Integration Strategy;

The degree to which the experience is in line with the Garda Síochána obligations under the Victims Directive and the Criminal Justice (Victims of Crime) Act 2017;

the impact on the individuals’ or communities’ behaviour in relation to policing ‐ confidence to report crime, confidence to provide information, degree to which they would encourage another member of their community to report a crime or seek assistance from the GS; and

the impact on the individuals’ or communities’ perception of the Garda Síochána and of police legitimacy.

Specific Issues Restrictions – necessary, proportionate and in the common good?

14. The Authority has consistently held the view that emergency powers for the Garda Síochána should be as limited as possible and used as sparingly as possible.

1 Ben‐Porat & Yuval, 2012; Cao, 2011; Circo, Melde & McGarrell, 2018; Cochran & Warren, 2012; Peck, 2015; Walfield, Social & Powers, 2017


6

15. The Authority has focused and continues to focus its oversight of the Garda Síochána through the lens of the protection of, and respect for, human rights. The Authority has been supportive of the Garda Síochána employing a balanced and graduated approach to using its emergency powers and has consistently questioned and sought to oversee that the powers are being used consistently and fairly across the country by the Garda Síochána. Over the last fifteen months these human rights been willingly limited and sacrificed by members of the public in order to protect life and public safety. The willingness of the public to accede to these restrictions is palpably demonstrated in the overwhelming level of compliance.

16. The proportionate use of powers through the graduated approach adopted by the Garda Síochána was important for public confidence. It demonstrates a recognition of the exceptional nature of the powers and the appropriateness of the requirement that the police service be held to account for their use. It is also a key enabler to effective transparent oversight. The ability of the organisation to provide data and information on the use of powers, number of checkpoints, fines issued etc, was and remains an important contributor to that confidence. Notwithstanding this, the Authority continued to challenge the Garda Síochána to record ethnic indicators for use of powers. This is important to ensure consistency and equality of policing in all of our communities and ensure policing is proportionate, fair and in compliance with human rights obligations.

17. The Authority expressed concerns in 2020 about plans to extend Garda powers and increase enforcement. In its published report in October 2020, it commented that extensive new powers for gardaí, and their widespread use, might not be the panacea that is sometimes thought and that increased enforcement was not a universal problem solver. A further concern of the Authority was that the very considerable support for the role played by the Garda Síochána might be affected as a consequence of unnecessarily increasing enforcement.

18. As we look forward in May 2021, this balancing of rights may pose more complex challenges as we enter phases of relaxation of restrictions and we will continue to discuss with the Garda Síochána how best to respond to that challenge.

The right to protest

19. The Authority has repeatedly supported the right of people to protest while urging the Garda Síochána to adopt a consistent approach to policing protests whether they are initiated by former employees of Debenhams or people who disagree with the health restrictions. There is a distinction to be made between the right to protest and the policing of the protest itself, the latter of which should comply with human rights standards irrespective of whether the assembly is “legal” or permissible under Covid‐19 regulations.

20. At the public meeting of the Authority on 25 March 2021 the Commissioner recognised protest as a function of democratic expression but equally alluded to the balancing of these rights with the right to life and protecting people. Ultimately, protest is legitimate but challenging in the context of the pandemic.


7

21. For the sake of clarity the Authority would emphasise that the right to protest does not justify the events which took place on 27 February 2021 in the Grafton Street area of Dublin and condemns the actions of individuals who committed these assaults on members of the Garda Síochána. Such assaults can never be justified.

Flexibility of the system to respond efficiently and effectively to an ever changing situation

22. The rapidly changing circumstances in general and in particular the abruptness with which the second wave descended necessitated prompt decisions. Unfortunately, the actions required to support these decisions lagged somewhat behind. This created confusion between what was reported as lawful and unlawful and what was actually enforceable as unlawful with the consequential impact on those at the front line of enforcement. In the context of enforcement, precise clarity and an accurate and timely communication of same are important ingredients for the consistency of application. At times the speed with which decisions were made may have prevented a more comprehensive consultation with the Garda Síochána than would be desirable when considering the imposition of such far reaching enforcement powers.

23. Furthermore the range of Statutory Instruments that preclude or otherwise what are ordinarily common activities is complex and, likely incomprehensible to the public. This complexity is compounded by their ever changing character and render them inaccessible. The Garda Síochána was challenged to communicate the changes in restrictions throughout the organisation. The challenge was met but the issue was not only to communicate the changes but for members to be able to interpret restrictions and subsequently guide (and where necessary enforce) the public to comply.

Sunset clauses

24. It is to be expected that the loosening and tightening of restrictions will follow the ebb and flow of the disease. The political difficulty lies in balancing the timing and degree of that loosening and tightening. Judgement as to how effective this has been is not within the competence of the Authority.

25. One issue that is very much within the ambit of the Authority’s oversight is the deployment of anti‐spit hoods. The Authority has consistently maintained its opposition to the deployment of anti‐spit hoods since their introduction in April 2020. It is the Authority’s view is that (a) the evidence supporting the efficacy of anti‐spit hoods remains unclear; (b) there is a negative impact by their use on individuals’ human rights; and (c) their deployments creates the risk of a negative perception of the Garda Síochána as a service. The Authority does not believe that sufficient evidence has been advanced to support their continued retention.

Adequate resourcing and training for members of the Garda Síochána

26. As noted earlier the Garda Síochána engaged in an extensive redeployment of members to front line duties, particularly during the second wave from January to end March 2021. This included not only redeployment from back office administrative posts but also the effective postponing of


8

activities in various units such as the nascent anti‐corruption unit, the cybercrime and economic crime units. Even with this level of redeployment the organisation struggled to cope and had to implement early attestation of recruits and make greater use of the Garda Reserves. Thus from

the perspective of numbers of personnel, it can be concluded that the organisation found it extremely challenging. Furthermore, the ability to facilitate front line COVID‐19 activities was largely dependent on the reduced levels of crime, particularly that associated with the night time economy. It is expected that this relatively benign crime scenario will unwind as restrictions ease thereby straining resources still further.

27. Training, despite the efforts of those involved within the Garda Síochána, has been the area most adversely affected by COVID‐19. The Garda College in Templemore was effectively closed for a year and what training was offered was provided online. When this is added to the rapidly changing legislative framework it is not surprising that members found this a particularly frustrating issue. The HQ directives issued were found to be imprecise and not offering any real guidance. Members of the Garda Síochána that the Authority engaged with as part of its stakeholder engagement activities noted that the organisation does not make documents accessible or consumable for members. This was challenging in normal times, but during the public health emergency and with regulations changing so often, this challenge was exacerbated. The constant flux of changing regulations also posed a risk of information overload for members. One internal Garda Síochána support which received considerable praise was the COVID unit. This provided members with a number to call for advice on key issues from

enforcement to safety concerns. It was described as highly responsive and accessible.

28. The considerable backlog in training is a key concern and driver training in particular is a key issue. In addition training is regularly used by supervisory ranks as a reward for good performance, or in cases where a member has narrowly missed out on promotion, as a means of addressing competency gaps and fostering development. With training largely on hold and with a potential backlog on the horizon, the potential for hard‐working and ambitious members to be dis‐incentivised is a worry.

Irish Council for Civil Liberties,Unit 11, First Floor, 34, Usher’s Quay,Dublin 8

Phone: +353-1-9121640Email: [email protected]

A HUMAN RIGHTS ANALYSIS OF THE IRISH GOVERNMENT’S RESPONSE TO COVID-19

HUMAN RIGHTS IN A PANDEMIC

CL_07


HUMAN RIGHTS IN A PANDEMIC

CL_07

Doireann Ansbro

Elizabeth Carthy

Olga Cronin

Gemma McLoughlin-Burke

MAY 2021

Human Rights in a Pandemic

A HUMAN RIGHTS ANALYSIS OF THE IRISH GOVERNMENT’S

RESPONSE TO COVID-19

ICCL wishes to acknowledge and thank The Community Foundation for Ireland for their support. This report is funded by a Community Foundation for Ireland Donor Advised Grant.

Doireann Ansbro

Elizabeth Carthy

Olga Cronin

Gemma McLoughlin-Burke

MAY 2021

Human Rights in a Pandemic

A HUMAN RIGHTS ANALYSIS OF THE IRISH GOVERNMENT’S

RESPONSE TO COVID-19


HUMAN RIGHTS IN A PANDEMIC A REPORT BY THE IRISH COUNCIL FOR CIVIL LIBERTIES2

We are emerging from the deepest crisis in living memory, which has had and continues to have a profound effect on Irish society

and on the wider world. The emergence of Covid-19 as a dangerous and highly contagious disease has caused widespread disruption to all aspects of our society. Many people have lost their lives and many families have been bereaved. Our healthcare and social services have been strained to breaking point – and, in some countries, beyond. Huge sections of our economy have been shut down with deep impacts on income, public services, and quality of life.

Human rights provide a framework to protect people, even in the most difficult of times. That framework helps us to see who needs most support, and when. In emergencies, human rights tell us which individual rights can be restricted to protect the rights of society at large. They guide us in deciding how long those restrictions can last, and how severe they can be.

The duty of the State to protect our rights to life and health has been the primary focus of national authorities. As well as demanding drastic economic and administrative efforts, this duty has also led to severe restrictions on a wide range of other rights. We have all been confined to our homes for extended periods of time. We have been prohibited under threat of criminal sanctions from meeting family or friends, from working together, and from participating in essential elements of community life.

We must continually remember just how far reaching these restrictions have been. They go to the heart of our democratic society, bringing the State and

the Gardaí into the regulation of ordinary life. This unprecedented situation has given us a glimpse into the experience of other regions of the world where police checkpoints, curfews and criminalisation of community activity are commonplace. At ICCL, we believe that this experience has also made us appreciate how precious our civil liberties are – the ability to move freely about our country without ‘reasonable excuse’ and without restrictions as to who we might meet now means a great deal more to us all.

It is important to recognise that, in many respects, our society and our State have shown their best qualities over the past year. The Irish people have accepted short term suspension of their rights as an act of solidarity to protect the most vulnerable in our community. The vast majority of people have supported the public health effort because they trust our State structures and, in general, they understand and trust the information that they have been presented with by Government. State supports have sustained those who have lost their jobs. Our public services and public servants have gone to extraordinary lengths to protect us. Healthcare workers, Gardaí, and essential workers have done trojan work. Our community and voluntary organisations have sheltered and stood up for those most affected.

But our democracy has been strained. While the Government and Oireachtas did not move to entirely suspend rights (as some other States did), the Minister for Health was given incredibly broad powers to restrict human rights. In particular, the two Ministers over the pandemic period introduced an extraordinary range of regulations criminalising aspects of daily life.

Foreword

"In this report, we set out our analysis of the pandemic response from a human rights perspective. From the outset, ICCL recognised that all aspects of our human rights would be impacted by the disease and by the State’s response."

3HUMAN RIGHTS IN A PANDEMIC A REPORT BY THE IRISH COUNCIL FOR CIVIL LIBERTIES

An Garda Síochána deserve credit for the moderation and common sense by which they have applied these powers in general, and the Policing Authority also must be commended for holding them to account in the policing of the various regulations.

Nevertheless, the precedent of policing public health measures with fines and criminal convictions is of enormous significance to our democracy and deserves careful analysis and scrutiny.

In this report, we set out our analysis of the pandemic response from a human rights perspective. From the outset, ICCL recognised that all aspects of our human rights would be impacted by the disease and by the State’s response. We immediately engaged with Government, the Oireachtas, and all relevant stakeholders to make the case for strong human rights protections at every stage of the response. We believed then, and we believe now, that strong protection of human rights is essential to an effective public health effort. We made recommendations on the content of laws and regulations. We made the case publicly for the protection of rights whenever new restrictions were contemplated. We advised State agencies on how to safeguard privacy within measures such as the Covid Tracker App. We persistently called for transparency and democratic accountability over these restrictions.

We present this analysis now to inform an essential review of the legal and policy framework for this emergency, and to identify how we might respond more effectively to any future crisis. Our view is that some of the more significant impacts on human rights

AcknowledgmentsThe authors of this report are ICCL staff members. We wish to thank our colleagues Sinéad Nolan and Luna Lara Liboni for their review and helpful comments and suggestions. We also thank ICCL’s many colleagues across civil society for their work on the issues covered in the report, which we have drawn on throughout.

might have been mitigated if different approaches had been taken; if there had been wider consultation with rights holders; and stronger systems of democratic oversight of Government action. It is clear to ICCL that Covid-19 has also exposed deep structural inequalities in our society and these must be tackled head on as a fundamental task in our recovery. It is essential that we learn from the challenges and build on the resilience that has emerged to strengthen our democracy, guard our rights and ensure equality and fairness for everyone into the future. The blueprint is already there. It’s in human rights.

Liam HerrickExecutive DirectorICCL


An Garda Síochána deserve credit for the moderation and common sense by which they have applied these powers in general, and the Policing Authority also must be commended for holding them to account in the policing of the various regulations.

Nevertheless, the precedent of policing public health measures with fines and criminal convictions is of enormous significance to our democracy and deserves careful analysis and scrutiny.

In this report, we set out our analysis of the pandemic response from a human rights perspective. From the outset, ICCL recognised that all aspects of our human rights would be impacted by the disease and by the State’s response. We immediately engaged with Government, the Oireachtas, and all relevant stakeholders to make the case for strong human rights protections at every stage of the response. We believed then, and we believe now, that strong protection of human rights is essential to an effective public health effort. We made recommendations on the content of laws and regulations. We made the case publicly for the protection of rights whenever new restrictions were contemplated. We advised State agencies on how to safeguard privacy within measures such as the Covid Tracker App. We persistently called for transparency and democratic accountability over these restrictions.

We present this analysis now to inform an essential review of the legal and policy framework for this emergency, and to identify how we might respond more effectively to any future crisis. Our view is that some of the more significant impacts on human rights

AcknowledgmentsThe authors of this report are ICCL staff members. We wish to thank our colleagues Sinéad Nolan and Luna Lara Liboni for their review and helpful comments and suggestions. We also thank ICCL’s many colleagues across civil society for their work on the issues covered in the report, which we have drawn on throughout.

might have been mitigated if different approaches had been taken; if there had been wider consultation with rights holders; and stronger systems of democratic oversight of Government action. It is clear to ICCL that Covid-19 has also exposed deep structural inequalities in our society and these must be tackled head on as a fundamental task in our recovery. It is essential that we learn from the challenges and build on the resilience that has emerged to strengthen our democracy, guard our rights and ensure equality and fairness for everyone into the future. The blueprint is already there. It’s in human rights.

Liam HerrickExecutive DirectorICCL


EXECUTIVE SUMMARY 06

INTRODUCTION 09

SECTION 1: THE IRISH COVID-19 RESPONSE I: LAW AND ENFORCEMENT 11

1. Legal Framework 131.1 Human rights in an emergency 14 (i) Human Rights Principles guiding ICCL’s work 14 (ii) Permissible Limitations or Derogations? 151.2 National legal response to Covid-19 16 (i) The First Emergency Health Act 16 (ii) Other Primary Legislation in response to Covid-19 17 (iii) Regulations made under the Emergency Legislation 18 (iv) Need for evidence-based and transparent decision making 191.3 Recommendations 21

2. Impact of the Covid-19 response on the justice system 232.1 Impact of restrictions on access to a lawyer 242.2 Impact of restrictions on criminal court hearings 242.3 Recommendations 26

3. Role of An Garda Síochána in the Covid-19 response 273.1 Reform and Community Policing 283.2 Enforcement powers 28 (i) Introduction of enforcement powers 29 (ii) Exercise of enforcement powers and coercive practices 323.3 Policing practices of concern from a human rights perspective 33 (i) Use of spit hoods 34 (ii) Need for further data on policing 353.4 Recommendations 36

SECTION 2: THE IRISH COVID-19 RESPONSE II: IMPACT ON RIGHTS 37

4. Impact of Covid-19 response on the right to protest 394.1 Legal framework – Right to protest 404.2 Impact of the restrictions on the right to protest 404.3 Recommendations 43

5. Impact of Covid-19 response on events and gatherings 455.1 Legal framework – Right to religious freedom and right to respect for private

and family life 465.2 Impact of restrictions on religious events and gatherings 465.3 Restrictions on other events 485.4 Recommendations 48

Contents


6. Impact of Covid-19 response on the right to free movement 496.1 Legal framework- Right to free movement 506.2 Impact of the restrictions on the right to free movement 506.3 Recommendations 51

7. Impact of Covid-19 response on the right to liberty 537.1 Legal framework – Right to liberty 547.2 Impact of the Covid-19 response on the right to liberty 54 (i) Detention on mental health grounds 54 (ii) Mandatory hotel quarantine 557.3 Recommendations 58

8. Impact of Covid-19 response on the right to privacy and data protection 598.1 Legal framework – Right to privacy and data protection 608.2 Impact of tracking technologies on the right to privacy and data protection 60 (i) CovidTracker app 60 (ii) Covid-19 Pandemic Unemployment Payments and airport checks 61 (iii) Covid-19 passports/certificates 628.3 Recommendations 63

SECTION 3: THE IRISH COVID-19 RESPONSE III: IMPACT OF COVID-19 AND RESTRICTIONS ON AT-RISK COMMUNITIES AND GROUPS 65

9. Impact of Covid-19 and restrictions on the right to equality and at-risk groups 679.1 Legal framework – Right to equality and non-discrimination 689.2 Need to address the disproportionate impact of Covid-19 and Covid-19 regulations 689.3 Brief examination of the disproportionate impact on different groups 70 (i) Age 70 (ii) Gender 72 (iii) Race and Ethnicity 73 (iv) People with disabilities 74 (v) Migrant status 74 (vi) Sexual Orientation and Gender Identity 759.4 Recommendations 76

10. Conclusion and All Recommendations 79

CONCLUSION 80

ALL RECOMMENDATIONS: 81


6. Impact of Covid-19 response on the right to free movement 496.1 Legal framework- Right to free movement 506.2 Impact of the restrictions on the right to free movement 506.3 Recommendations 51

7. Impact of Covid-19 response on the right to liberty 537.1 Legal framework – Right to liberty 547.2 Impact of the Covid-19 response on the right to liberty 54 (i) Detention on mental health grounds 54 (ii) Mandatory hotel quarantine 557.3 Recommendations 58

8. Impact of Covid-19 response on the right to privacy and data protection 598.1 Legal framework – Right to privacy and data protection 608.2 Impact of tracking technologies on the right to privacy and data protection 60 (i) CovidTracker app 60 (ii) Covid-19 Pandemic Unemployment Payments and airport checks 61 (iii) Covid-19 passports/certificates 628.3 Recommendations 63

SECTION 3: THE IRISH COVID-19 RESPONSE III: IMPACT OF COVID-19 AND RESTRICTIONS ON AT-RISK COMMUNITIES AND GROUPS 65

9. Impact of Covid-19 and restrictions on the right to equality and at-risk groups 679.1 Legal framework – Right to equality and non-discrimination 689.2 Need to address the disproportionate impact of Covid-19 and Covid-19 regulations 689.3 Brief examination of the disproportionate impact on different groups 70 (i) Age 70 (ii) Gender 72 (iii) Race and Ethnicity 73 (iv) People with disabilities 74 (v) Migrant status 74 (vi) Sexual Orientation and Gender Identity 759.4 Recommendations 76

10. Conclusion and All Recommendations 79

CONCLUSION 80

ALL RECOMMENDATIONS: 81


When the Taoiseach announced the first country wide shut down on 12 March 2020 as an attempt to combat the transmission

of Covid-19, the Irish Council for Civil Liberties (ICCL) immediately identified the need for a public health response that incorporated fundamental human rights and rule of law principles.

Human rights are designed to protect and to empower people. In emergencies, some individual rights can be limited to protect other rights, including the right to life and the right to health. The human rights law framework recognised explicitly that protecting public health is a valid reason for placing limits on individual rights.

However, the same framework requires that every restriction a Government imposes to protect public health must meet certain tests: it must have a legislative basis; respond to an evidence-based need; be in pursuit of a legitimate aim; and every restriction must be the most minimal possible to meet that aim. Restrictions imposed in an emergency must be temporary.

Ensuring interferences with rights are proportionate requires a careful balancing of numerous factors: scientific evidence and analysis of the nature of the threat to public health; careful analysis of what measures are needed to respond appropriately to that threat; what impact these measures will have on rights and how to keep interferences with rights to a minimum; and how best to protect the most at risk and prevent discrimination.

ICCL has monitored and campaigned for a human

rights-based approach to the Covid-19 response from March 2020. This report summarises the work we have done, analyses particular rights issues, and makes recommendations to Government and to other relevant public actors. Our rights analysis is informed by Ireland’s human rights obligations under the Irish Constitution, the European Convention on Human Rights (ECHR) and the range of international human rights treaties that Ireland has ratified.

The report focuses on the key areas we monitored and campaigned on over the past fifteen months: the Emergency Legislation and the making of regulations; the policing response; the impact of Covid-19 restrictions on fundamental rights, such as the right to protest and the right to privacy; and the effect of both Covid-19 and the restrictions on at-risk communities. We identify several problematic developments such as continually expanding police powers and the use of spit hoods as part of the Garda response. We summarise the work we did to ensure that new measures that would infringe on rights, from the Covid Tracker App to vaccine passports, were rigorously interrogated from a rights perspective. We identify where we think the Government could have better protected our rights. We make recommendations for immediate action and for what measures should be taken to ensure a better human rights compliant response in any future emergencies.

The report is not a comprehensive analysis of all human rights issues in the Government’s response. Other issues such as rights in prisons, the right to education, or the need for a comprehensive analysis of the impact of Covid-19 and restrictions on particular groups are

Executive Summary

"Human rights are designed to protect and to empower people. In emergencies, some individual rights can be limited to protect other rights, like the right to life and the right to health. But every restriction a Government imposes to protect public health must meet certain tests."


beyond the scope of this report. We identify the work of partner organisations who have produced in-depth and important reports on some of these issues.

In the first section, we outline six principles we believe should be taken into account when restricting rights in an emergency. We analyse the central piece of Emergency Legislation that permitted all subsequent regulations that restricted rights – the Health (Preservation and Protection and Other Measures in the Public Interest) Act 2020- in light of these principles. We identify specific ways it should be amended if it is renewed again on 9 June 2021. We recommend a rigorous Oireachtas review before renewal with sufficient time for robust debate. We identify areas for improvement in the drafting of emergency regulations, including better scrutiny, clearer communication and more transparency in decision-making.

We address how access to justice has been affected by the pandemic, calling for more resources to address the backlog in cases. We explore the expanded policing powers given to An Garda Síochána, documenting what we consider an over reliance on criminal justice to ensure compliance with public health guidelines where better communication and supports may have been more effective, in line with research from behavioural psychologists. We call for better data collection on the use of new police powers. We reiterate our concern that spit hoods may constitute inhuman or degrading treatment or punishment and we call for an immediate end to their use.

In the second section, we examine several rights in focus such as the right to protest. Over the past year we repeatedly called for an exception to the general restrictions on public gatherings for small, pandemic-safe protests that comply with public health guidelines. We argue that the right to protest takes on an even greater importance in a democracy during a time when decisions are being made that have such a huge impact on lives and livelihoods. We express concern at the criminalisation of protest,

highlighting Garda investigations into protest organisers, threats of prosecution, and a failure by Government to provide clarity around what was and was not permitted. This led to inconsistent policing, a chilling effect on protest, and ongoing confusion about whether protests are allowed under the public health restrictions. We repeat our call for small, pandemic-safe protests to be explicitly provided for in the Covid-19 regulations.

We examine the impact of the restrictions on a number of other rights too, including the right to manifest religion or belief, the right to private and family life, and the right to privacy. We consider that the blanket ban under the highest restrictions on all gatherings may have been disproportionate. We recommend that all households should have been permitted to pair with another household when restrictions were at their low to moderate levels. We address freedom of liberty and movement, questioning whether restrictions on movement were always proportionate, and criticising the lack of clarity in Government communication.

We address the controversy around the proposed introduction of ‘Covid passports’, emphasising that the use of domestic passports to access goods and services would have been discriminatory and disproportionately infringed rights to private and family life. On the introduction of mandatory hotel quarantine (MHQ), given that it constitutes a form of State detention, we explore what would be required to ensure that such quarantine constitutes a necessary and proportionate interference with the right to liberty. We identify a failure in the review and appeal process, as well as problematic and potentially arbitrary and discriminatory approaches to identifying what States are on the MHQ list. We call for an end to the system as soon as possible.

We summarise the work we did calling for Government to ensure the tech response to the pandemic conformed with human rights principles of necessity and proportionality and we repeat our call for proof that the technology introduced, including the Covid Tracker App, is effective. Without proof


beyond the scope of this report. We identify the work of partner organisations who have produced in-depth and important reports on some of these issues.

In the first section, we outline six principles we believe should be taken into account when restricting rights in an emergency. We analyse the central piece of Emergency Legislation that permitted all subsequent regulations that restricted rights – the Health (Preservation and Protection and Other Measures in the Public Interest) Act 2020- in light of these principles. We identify specific ways it should be amended if it is renewed again on 9 June 2021. We recommend a rigorous Oireachtas review before renewal with sufficient time for robust debate. We identify areas for improvement in the drafting of emergency regulations, including better scrutiny, clearer communication and more transparency in decision-making.

We address how access to justice has been affected by the pandemic, calling for more resources to address the backlog in cases. We explore the expanded policing powers given to An Garda Síochána, documenting what we consider an over reliance on criminal justice to ensure compliance with public health guidelines where better communication and supports may have been more effective, in line with research from behavioural psychologists. We call for better data collection on the use of new police powers. We reiterate our concern that spit hoods may constitute inhuman or degrading treatment or punishment and we call for an immediate end to their use.

In the second section, we examine several rights in focus such as the right to protest. Over the past year we repeatedly called for an exception to the general restrictions on public gatherings for small, pandemic-safe protests that comply with public health guidelines. We argue that the right to protest takes on an even greater importance in a democracy during a time when decisions are being made that have such a huge impact on lives and livelihoods. We express concern at the criminalisation of protest,

highlighting Garda investigations into protest organisers, threats of prosecution, and a failure by Government to provide clarity around what was and was not permitted. This led to inconsistent policing, a chilling effect on protest, and ongoing confusion about whether protests are allowed under the public health restrictions. We repeat our call for small, pandemic-safe protests to be explicitly provided for in the Covid-19 regulations.

We examine the impact of the restrictions on a number of other rights too, including the right to manifest religion or belief, the right to private and family life, and the right to privacy. We consider that the blanket ban under the highest restrictions on all gatherings may have been disproportionate. We recommend that all households should have been permitted to pair with another household when restrictions were at their low to moderate levels. We address freedom of liberty and movement, questioning whether restrictions on movement were always proportionate, and criticising the lack of clarity in Government communication.

We address the controversy around the proposed introduction of ‘Covid passports’, emphasising that the use of domestic passports to access goods and services would have been discriminatory and disproportionately infringed rights to private and family life. On the introduction of mandatory hotel quarantine (MHQ), given that it constitutes a form of State detention, we explore what would be required to ensure that such quarantine constitutes a necessary and proportionate interference with the right to liberty. We identify a failure in the review and appeal process, as well as problematic and potentially arbitrary and discriminatory approaches to identifying what States are on the MHQ list. We call for an end to the system as soon as possible.

We summarise the work we did calling for Government to ensure the tech response to the pandemic conformed with human rights principles of necessity and proportionality and we repeat our call for proof that the technology introduced, including the Covid Tracker App, is effective. Without proof


of effectiveness, we argue that such technology cannot be a proportionate interference with our rights to privacy and data protection. We examine the controversial cutting of social welfare payments in the summer of 2020. We identify as yet unanswered questions about who authorised the inspections in Dublin Airport or the cuts to social welfare and we call for answers and accountability.

It is clear that both Covid-19 and the restrictions have affected some communities more than others. People living in congregated settings such as in Direct Provision Centres, Traveller halting sites and prisons have been more at risk than others. The number of outbreaks and devastating death toll in Nursing Homes has been a national and international scandal. Older people have been cocooned and cut off from family and key supports. Women have borne much of the care burden, lost jobs and, constituting the majority of healthcare workers, have been more exposed to the virus. Domestic violence has risen. We examine the impact of Covid-19 on a number of at-risk communities and make recommendations on how these groups could be better protected in future.

The final section summarises our recommendations addressing both short term actions necessary to protect human rights now, and long term actions that we believe could ensure a more robust human

"The pandemic has shown us how interconnected we are nationally and internationally and how reliant we are on each other for our health and wellbeing. As we restore the rights and freedoms restricted during the pandemic, we must restore them on an equal basis for everyone."

rights compliant response from Government to similar emergencies in the future. We address recommendations to Government, An Garda Síochána, the Courts Services, the Data Protection Commissioner and the Director of Public Prosecutions.

Looking to the future, ICCL looks forward to a time when society can come back together in full enjoyment of our human rights. We echo the global call for Governments to ‘build back better’ where structural inequalities are addressed, and entrenched societal problems are solved. We have seen how existing inequalities were exacerbated during the pandemic and how, when some are at risk, we are all at risk. The pandemic has shown us how interconnected we are nationally and internationally and how reliant we are on each other for our health and wellbeing. As we restore the rights and freedoms restricted during the pandemic, we must restore them on an equal basis for everyone.


The Irish Council for Civil Liberties (ICCL) has been monitoring the Government’s response to the outbreak of Covid-19 in Ireland since March

2020. We recognised the grave threat Covid-19 poses to the right to life and the right to health and understood the need for a comprehensive public health response that would include necessary and proportionate restrictions on the exercise of other rights, given the highly contagious nature of the disease and the urgent need to stem its transmission.

ICCL believes that a human rights framework provides protection for everyone at all times. It ensures that every action the Government takes responds to a real need and that measures taken to protect the right to life and public health don’t go too far in restricting other rights to the extent that they lose their essence. Human rights require that the protection of vulnerable populations is prioritised, particularly during emergencies. For these reasons, it’s vital that the Government applies a rights-based framework in its response.

ICCL has consistently campaigned for a human rights-based approach to all restrictions on rights during the pandemic, calling for a demonstration by Government that each restriction was prescribed by law, necessary in a democratic society, and proportionate to a legitimate aim; as well as time bound to the duration

of the emergency. We have repeatedly called for an approach informed by fundamental human rights principles including prioritising protection and support for those most at-risk and ensuring no measure could lead to discrimination. We have also called for a human rights impact assessment of both Covid-19 and the restrictions to inform all legal and policy responses.

A human rights-based approach to the pandemic has been called for by a range of other actors too. Early in the pandemic, the World Health Organisation (WHO) Director stated that: “All countries must strike a fine balance between protecting health, minimizing economic and social disruption, and respecting human rights"1. The United Nations Secretary-General and the UN High Commissioner for Human Rights have urged States to conform with human rights law and standards throughout the pandemic.2 The Trinity College Dublin (TCD) Covid-19 Law and Human Rights Observatory has been a consistent source of detailed legal analysis on the impact of the pandemic response on constitutional rights.3 The Irish Human Rights and Equality Commission has also made important contributions on key issues, most significantly through its recent report on Ireland’s emergency powers during the pandemic, produced in conjunction with the TCD Observatory.4

Introduction

1 WHO Director General, Media Briefing, 11 March 2020.2 UN Secretary-General, We are all in this together: UNSG delivers policy brief on Covid-19 and human rights, 23 April 2020, and see Statement

by Michelle Bachelet, UN High Commissioner for Human Rights on Human Rights Impact of Covid-19, 45th Session of the Human Rights Council, September 2020 and see range of work at https://www.ohchr.org/EN/NewsEvents/Pages/COVID-19.aspx.

3 See Trinity College Dublin, Covid-19 Law and Human Rights Observatory. 4 Conor Casey, Oran Doyle, David Kenny and Donna Lyons, Ireland’s Emergency Powers during the Covid-19 Pandemic, Report prepared for The

Irish Human Rights and Equality Commission by The COVID-19 Law and Human Rights Observatory, (Hereinafter IHREC, Ireland’s Emergency Powers during the Covid-19 Pandemic).

"A human rights framework provides protection for everyone at all times. It ensures that every action the Government takes responds to a real need and that measures taken to protect the right to life and public health don’t go too far in restricting other rights."

https://www.who.int/publications/i/item/addressing-human-rights-as-key-to-the-covid-19-response

https://www.ohchr.org/EN/NewsEvents/Pages/UNSG_HumanRights_COVID19.aspx

https://www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=26232&LangID=E



https://www.ihrec.ie/documents/irelands-emergency-powers-during-the-covid-19-pandemic/



The Irish Council for Civil Liberties (ICCL) has been monitoring the Government’s response to the outbreak of Covid-19 in Ireland since March

2020. We recognised the grave threat Covid-19 poses to the right to life and the right to health and understood the need for a comprehensive public health response that would include necessary and proportionate restrictions on the exercise of other rights, given the highly contagious nature of the disease and the urgent need to stem its transmission.

ICCL believes that a human rights framework provides protection for everyone at all times. It ensures that every action the Government takes responds to a real need and that measures taken to protect the right to life and public health don’t go too far in restricting other rights to the extent that they lose their essence. Human rights require that the protection of vulnerable populations is prioritised, particularly during emergencies. For these reasons, it’s vital that the Government applies a rights-based framework in its response.

ICCL has consistently campaigned for a human rights-based approach to all restrictions on rights during the pandemic, calling for a demonstration by Government that each restriction was prescribed by law, necessary in a democratic society, and proportionate to a legitimate aim; as well as time bound to the duration

of the emergency. We have repeatedly called for an approach informed by fundamental human rights principles including prioritising protection and support for those most at-risk and ensuring no measure could lead to discrimination. We have also called for a human rights impact assessment of both Covid-19 and the restrictions to inform all legal and policy responses.

A human rights-based approach to the pandemic has been called for by a range of other actors too. Early in the pandemic, the World Health Organisation (WHO) Director stated that: “All countries must strike a fine balance between protecting health, minimizing economic and social disruption, and respecting human rights"1. The United Nations Secretary-General and the UN High Commissioner for Human Rights have urged States to conform with human rights law and standards throughout the pandemic.2 The Trinity College Dublin (TCD) Covid-19 Law and Human Rights Observatory has been a consistent source of detailed legal analysis on the impact of the pandemic response on constitutional rights.3 The Irish Human Rights and Equality Commission has also made important contributions on key issues, most significantly through its recent report on Ireland’s emergency powers during the pandemic, produced in conjunction with the TCD Observatory.4

Introduction

1 WHO Director General, Media Briefing, 11 March 2020.2 UN Secretary-General, We are all in this together: UNSG delivers policy brief on Covid-19 and human rights, 23 April 2020, and see Statement

by Michelle Bachelet, UN High Commissioner for Human Rights on Human Rights Impact of Covid-19, 45th Session of the Human Rights Council, September 2020 and see range of work at https://www.ohchr.org/EN/NewsEvents/Pages/COVID-19.aspx.

3 See Trinity College Dublin, Covid-19 Law and Human Rights Observatory. 4 Conor Casey, Oran Doyle, David Kenny and Donna Lyons, Ireland’s Emergency Powers during the Covid-19 Pandemic, Report prepared for The

Irish Human Rights and Equality Commission by The COVID-19 Law and Human Rights Observatory, (Hereinafter IHREC, Ireland’s Emergency Powers during the Covid-19 Pandemic).

"A human rights framework provides protection for everyone at all times. It ensures that every action the Government takes responds to a real need and that measures taken to protect the right to life and public health don’t go too far in restricting other rights."


This report examines the Government’s response to the pandemic through a human rights lens from March 2020 up to May 2021. Our analysis is informed by Ireland’s human rights obligations under the Irish Constitution, the European Convention for Human Rights (ECHR), and international human rights treaties.

The report is limited in scope and should not be considered a comprehensive analysis of all human rights impacted by Covid-19 or the Government’s response. In general, we have focused on issues that are in line with our ongoing work such as policing, protest and privacy. Other issues such as rights in prisons and the right to education are, while of equal importance, beyond the scope of this report. While we identify key rights issues affecting some communities and groups, the report does not provide a comprehensive analysis of the impact of Covid-19 and restrictions on particular groups. We identify the work of other civil society organisations who have produced important reports on some of these issues.

The report is divided into two main parts. Part 1 highlights and discusses the legal framework underpinning the Covid-19 response and policing responses in the Covid-19 pandemic. Part 2 examines

the impact of Covid-19 restrictions on some key human rights, including the right to protest, the right to liberty, the right to privacy, and the impact of both Covid-19 and restrictions on at-risk communities.

We make recommendations for immediate action and we make recommendations on what measures should be taken to ensure a better human rights compliant response in future emergencies.

We hope the report contributes to a broader review of the Government’s response to Covid-19 and that it assists in informing a greater focus on protecting human rights in future emergencies.

"We have repeatedly called for an approach informed by fundamental human rights principles including prioritising protection and support for those most at-risk and ensuring no measure could lead to discrimination."



The Irish Covid-19 Response I: Law and EnforcementThis part sets out and analyses the human rights and legal framework underpinning the Irish Covid-19 response. It then examines the impact of Covid-19 restrictions on the justice system and explores the role of An Garda Síochána in enforcing Covid-19 restrictions.

SECTION 1

The Irish Covid-19 Response I: Law and EnforcementThis part sets out and analyses the human rights and legal framework underpinning the Irish Covid-19 response. It then examines the impact of Covid-19 restrictions on the justice system and explores the role of An Garda Síochána in enforcing Covid-19 restrictions.

SECTION 1


LEGAL FRAMEWORK

1Human Rights in a Pandemic



LEGAL FRAMEWORK




1. Legal Framework1.1 Human rights in an emergency There are two ways States can lawfully restrict rights in an emergency. The first is to make a declaration of derogation – or exemption – from specific rights, as provided for in international treaties, including the European Convention on Human Rights (ECHR). This is not possible for all rights. For example, the prohibition of torture and cruel, inhuman or degrading treatment and the rule that there shall be no punishment without law are absolute and non-derogable, meaning that no limits can be placed upon them, even in emergency contexts.5

The second is to limit rights within the permitted framework of human rights law. This requires Government to take only those measures that are necessary, proportionate and consistent with their national and international legal obligations.6 This is discussed in detail below.

The Irish Constitution provides that constitutional human rights norms may be limited in the event of an emergency caused by a war or armed rebellion.7 Absent these circumstances, the Irish Courts have made clear that all restrictions on Constitutional rights must be proportionate.8

(i) Human Rights Principles guiding ICCL’s workHuman rights law and ordinary rule of law principles place further requirements on Government when providing for limitations on rights in law. We consider, based on well-established human rights and rule of law principles, that the Government’s approach to restricting rights in an emergency should always incorporate the following six principles. We have used these principles to inform our analysis throughout this report.

PRINCIPLE 1: Without a derogation, rights can be limited but not suspended

The State must either make a declaration of derogation (where possible) or ensure that all limits on qualified rights conform with the human rights framework. This requires Government to take only those measures that are necessary, proportionate and consistent with their national and international legal obligations.9

PRINCIPLE 2: Legislation should be subject to scrutiny, consultation and oversight by Parliament

Parliamentary scrutiny by the Oireachtas is an essential protective mechanism against abuse of executive power in a democracy. Laws should be scrutinised, debated and approved by Parliament. Where measures are developed in a robust and transparent manner, they are more likely to withstand challenge and they are more likely to retain public trust.

PRINCIPLE 3: Legislation should be demonstrably compatible with human rights law.

Legislation should be compatible with all of Ireland’s human rights obligations under international human rights law, including the European Convention on Human Rights. Section 42 of the Human Rights and Equality Commission Act 2014 places a clear obligation on Government to equality and human rights proof legislation, meaning it must be scrutinised in terms of its impact on civil, political, economic, social and cultural rights.10

PRINCIPLE 4: Law must be clear, precise and accessible and must be communicated clearly to the public.

A fundamental rule of law principle is that laws must be clear, precise and accessible. People must know what behaviour is legal and what is not legal and therefore must be able to access laws in good time before they are in force. Where criminal sanctions are concerned, the obligation on the State to set out clearly the nature of any legal obligations is greater. This requires the publishing of laws before they enter into force, clear communication of their content, and clear drafting.

PRINCIPLE 5: Evolving responses to the emergency must be demonstrably connected to evidence of effectiveness and need.

Laws and policies should be drafted on the basis of demonstrable need rooted in high quality evidence. Data collection to inform decision-making is a key human rights principle. Government should conduct a human rights impact assessment of all restrictions on rights to ensure laws and policies respond to real needs, discrimination is avoided, and differential impacts are minimised and mitigated by key supports.

5 European Court of Human Rights, Guide on Article 15 ECHR, April 20206 See report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism,

HRC A/HRC/37/52, March 20187 Constitution of Ireland, Article 28.8 This test emanated first from the case of Heaney v. Ireland [1994] 3 IR 593.9 See report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism,

HRC A/HRC/37/52, March 2018. 10 IHREC, Guidance Note on Covid-19 and the Public Sector Equality and Human Rights Duty.

https://www.echr.coe.int/documents/Guide_Art_15_ENG.pdf

https://documents-dds-ny.un.org/doc/UNDOC/GEN/G18/054/36/PDF/G1805436.pdf?OpenElement


https://www.ihrec.ie/app/uploads/2020/08/Guidance-Note-on-COVID-19-and-the-Public-Sector-Equality-and-Human-Right-Duty-002.pdf


PRINCIPLE 6: Access to justice and accountability must be maintained.

Access to justice is a key check on Government power and takes on a special importance during a period of significant and extensive human rights interferences. Government must ensure access to the Courts is protected to the greatest extent possible.

(ii) Permissible Limitations or Derogations?This sub-section describes Principle 1 in more detail, examining the permissible limitations to human rights under the Constitution and human rights law in an emergency.

Irish Constitution: All legislation in Ireland must be compatible with the rights protected by the Irish Constitution unless an official emergency is declared. The Constitution allows for an official emergency to be declared only in times of war or armed rebellion “for the purpose of securing the public safety and the preservation of the State”.11 The Constitution therefore does not empower the Government to suspend constitutional rights during a public health emergency.

Absent a State of emergency, the Irish Courts require restrictions on constitutional rights to meet four criteria. Restrictions must meet an important objective that is pressing and substantial in a free and democratic society; the means must be rationally connected to the aim; the interference must impair rights as little as possible; and the interference must be proportionate.12

Human rights law: International human rights law, including the ECHR, cannot be suspended in times of emergency unless a declaration of derogation relating to a specific right is made. Certain rights such as the right to life and the right not to be subjected to torture or inhuman or degrading treatment or punishment can never be derogated from.

Article 15 of the ECHR provides for derogations in “time of war or other public emergency threatening

the life of the nation”. In Lawless v. Ireland,13 the European Commission on Human Rights defined a “public emergency” as “a situation of exceptional and imminent danger or crisis affecting the general public, as distinct from particular groups, and constituting a threat to the organised life of the community which composes [the] State in question.”14 In the Greek Case15, the Commission identified four characteristics of a “public emergency” under Article 15 of the European Convention: it must be actual or imminent; its effects must involve the whole nation; the continuance of the organised life of the community must be threatened; and the crisis or danger must be exceptional, in that the normal measures or restrictions, permitted by the Convention for the maintenance of public safety, health and order, are plainly inadequate.

The UN Human Rights Committee has made it clear that derogations should only be invoked to the International Covenant on Civil and Political Rights, (ICCPR) where a State cannot obtain its objectives within the existing limitations foreseen by the Convention in each article.16

Some commentators have argued that the correct approach to limiting rights during the pandemic would have been to make a declaration of derogation.17 Given the exceptional and temporary nature of derogations, they argue that a short, sharp suspension is better than long term and ongoing limitations. A small number of other States derogated from a number of rights for a limited period of time during the Covid-19 pandemic.18 The Irish Government, however, did not make a declaration of derogation for any rights during the Covid-19 pandemic.

ICCL considers that a declaration of derogation at the outset of the pandemic would not necessarily have been appropriate for any rights given the unknown nature of the virus, in particular in terms of how long limitations on rights would have to be in place. In keeping with the fourth limb of the EHCR test above for derogations, normal restrictions permitted by the ECHR for the maintenance of public health were

11 Constitution of Ireland, Article 28.3.3.12 This test emanated first from the case of Heaney v. Ireland [1994] 3 IR 593.13 See European Court of Human Rights, Lawless v. Ireland, application No. 332/57 (A/3), judgment of 1 July 1961, affirmed in A and Others v. the

United Kingdom, Application No. 3455/05, judgment of 19 February 2009, para. 176.14 See Lawless v. Ireland, para. 90.15 See European Commission of Human Rights, The Greek Case, application Nos. 3321–3323 and 3344/67, Report of the Commission (1969).16 General comment No. 29 (2001) on derogations from provisions of the Covenant during a State of emergency, para. 5. See also CCPR/C/128/2,

para. 2(c).17 See for example Alan Greene, Emergency Powers in a Time of Pandemic, Bristol University Press, 202018 See Derogations by States Parties, Laws on the Right of Assembly Worldwide, a repository of legal information managed by the University of

Pretoria.

https://www.rightofassembly.info/assets/downloads/Derogations_by_States_Parties_from_the_right_to_assembly_on_the_Basis_of_the_COVID_19_Pandemic_(as_of_3_March_2021).pdf



Access to justice is a key check on Government power and takes on a special importance during a period of significant and extensive human rights interferences. Government must ensure access to the Courts is protected to the greatest extent possible.

(ii) Permissible Limitations or Derogations?This sub-section describes Principle 1 in more detail, examining the permissible limitations to human rights under the Constitution and human rights law in an emergency.

Irish Constitution: All legislation in Ireland must be compatible with the rights protected by the Irish Constitution unless an official emergency is declared. The Constitution allows for an official emergency to be declared only in times of war or armed rebellion “for the purpose of securing the public safety and the preservation of the State”.11 The Constitution therefore does not empower the Government to suspend constitutional rights during a public health emergency.

Absent a State of emergency, the Irish Courts require restrictions on constitutional rights to meet four criteria. Restrictions must meet an important objective that is pressing and substantial in a free and democratic society; the means must be rationally connected to the aim; the interference must impair rights as little as possible; and the interference must be proportionate.12

Human rights law: International human rights law, including the ECHR, cannot be suspended in times of emergency unless a declaration of derogation relating to a specific right is made. Certain rights such as the right to life and the right not to be subjected to torture or inhuman or degrading treatment or punishment can never be derogated from.

Article 15 of the ECHR provides for derogations in “time of war or other public emergency threatening

the life of the nation”. In Lawless v. Ireland,13 the European Commission on Human Rights defined a “public emergency” as “a situation of exceptional and imminent danger or crisis affecting the general public, as distinct from particular groups, and constituting a threat to the organised life of the community which composes [the] State in question.”14 In the Greek Case15, the Commission identified four characteristics of a “public emergency” under Article 15 of the European Convention: it must be actual or imminent; its effects must involve the whole nation; the continuance of the organised life of the community must be threatened; and the crisis or danger must be exceptional, in that the normal measures or restrictions, permitted by the Convention for the maintenance of public safety, health and order, are plainly inadequate.

The UN Human Rights Committee has made it clear that derogations should only be invoked to the International Covenant on Civil and Political Rights, (ICCPR) where a State cannot obtain its objectives within the existing limitations foreseen by the Convention in each article.16

Some commentators have argued that the correct approach to limiting rights during the pandemic would have been to make a declaration of derogation.17 Given the exceptional and temporary nature of derogations, they argue that a short, sharp suspension is better than long term and ongoing limitations. A small number of other States derogated from a number of rights for a limited period of time during the Covid-19 pandemic.18 The Irish Government, however, did not make a declaration of derogation for any rights during the Covid-19 pandemic.

ICCL considers that a declaration of derogation at the outset of the pandemic would not necessarily have been appropriate for any rights given the unknown nature of the virus, in particular in terms of how long limitations on rights would have to be in place. In keeping with the fourth limb of the EHCR test above for derogations, normal restrictions permitted by the ECHR for the maintenance of public health were

11 Constitution of Ireland, Article 28.3.3.12 This test emanated first from the case of Heaney v. Ireland [1994] 3 IR 593.13 See European Court of Human Rights, Lawless v. Ireland, application No. 332/57 (A/3), judgment of 1 July 1961, affirmed in A and Others v. the

United Kingdom, Application No. 3455/05, judgment of 19 February 2009, para. 176.14 See Lawless v. Ireland, para. 90.15 See European Commission of Human Rights, The Greek Case, application Nos. 3321–3323 and 3344/67, Report of the Commission (1969).16 General comment No. 29 (2001) on derogations from provisions of the Covenant during a State of emergency, para. 5. See also CCPR/C/128/2,

para. 2(c).17 See for example Alan Greene, Emergency Powers in a Time of Pandemic, Bristol University Press, 202018 See Derogations by States Parties, Laws on the Right of Assembly Worldwide, a repository of legal information managed by the University of

Pretoria.


likely sufficient to meet Government’s need to impose measures to fight transmission of Covid-19.

As the Irish Government did not declare a state of emergency or make a declaration of derogation, all restrictions on rights that can be limited (known as ‘qualified rights’) had to meet the requirements of ordinary human rights law. This means each restriction had to be provided for by law, had to be necessary in a democratic society to meet a pressing need and had to be proportionate to a legitimate aim. The Office of the UN High Commissioner for Human Rights issued a guidance note to governments on the Covid-19 response in April 2020 which clarified that in addition to that three-limb test, “all limitations should be interpreted strictly and in favour of the right at issue. No limitation can be applied in an arbitrary manner…[T]he authorities have the burden of justifying restrictions upon rights”19

The UN Special Rapporteur on protecting human rights and fundamental freedoms while countering terrorism has emphasised the importance of protecting the essence of rights even when limiting them, saying:

“Limitations are prudent measures designed to protect [the public good] and the rights of others without undermining essential human rights that provide the foundation for a dignity-based society.”20

Whether some Government measures went too far in placing limits on fundamental rights during the pandemic is arguable and is discussed throughout this report.

1.2 National legal response to Covid-19 Principle 2 above provides that laws should be scrutinised, debated and approved by our representatives. This principle arguably takes on an even greater importance during a pandemic where public trust in Government is vital to ensure compliance with public health advice. Principle 3 provides that legislation should be demonstrably compatible with human rights law. This section examines the emergency legislation passed by Government in response to Covid-19 in light of these two principles.

19 Emergency Measures and Covid-19: Guidance Note, Office of the UN High Commissioner for Human Rights, April 2020.20 Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, HRC

A/HRC/37/52, March 2018.21 s.31A(1)(h).22 ICCL Submission on the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Bill 2020, March 18, 2020. 23 ICCL Briefing on Covid-19 Emergency Legislation, March 2020.24 See eg Doireann Ansbro, Our human rights cannot be sacrificed in fight against Covid-19, Irish Examiner, 23 March 2021.

(i) The First Emergency Health Act The Health (Preservation and Protection and Other Emergency Measures in the Public Interest) Act 2020, amending the Health Act 1947, (the Emergency Legislation) is the bedrock legislation that most subsequent regulations restricting rights were, and continue to be, based on. It was debated in the Oireachtas between 18 and 20 March 2020 and signed into law on 20 March 2020. The Act grants the Minister for Health the power to make legal regulations restricting people’s movement, travel, gatherings and events as well as “any other measures that the Minister considers necessary in order to prevent, limit, minimise or slow the spread of Covid-19”.21 It also expands the right of medical officers to detain those who are a “potential source of infection”, and removed some safeguards for those detained on that basis. The same Act provides for various social welfare measures, which we briefly examine in the chapter on equality.

ICCL did not oppose the Emergency Legislation. Placing restrictions on rights on a legal footing is required to meet the first criteria of the human rights framework- ensuring restrictions are ‘prescribed by law’. We understood that the urgency of the situation, in addition to the many unknowns about the virus or how it would spread, required immediate action to protect the rights to life and health.

However, ICCL made a comprehensive submission22 to members of the Oireachtas once the first draft of the Emergency Health Bill was published on 18 March 2020 outlining some key concerns with the draft Bill. We published a briefing note23 on the human rights implications of the law and we campaigned for Government to use the human rights framework in its response.24 We called for a clear human rights test to be included in the making of all regulations, better safeguards for people who may be detained, consultation with relevant stakeholders, oversight by Parliament and a sunset clause to ensure the legislation would not apply beyond the emergency. We noted the power conferred on the Minister to create new criminal offences and the expansion of garda powers of arrest; and we called for any law creating new criminal offences to be drafted clearly and narrowly and for overbroad discretionary police powers to be avoided.

https://www.ohchr.org/Documents/Events/EmergencyMeasures_COVID19.pdf


https://www.iccl.ie/wp-content/uploads/2020/03/ICCL-analysis-emergency-COVID19-legislation.pdf

https://www.iccl.ie/wp-content/uploads/2020/03/ICCL-briefing-on-COVID-19-emergency-legislation.pdf

https://www.irishexaminer.com/business/arid-30989544.html


The fact that the legislation was rushed through both houses of the Oireachtas in three days prevented proper in-depth scrutiny of the Bill. A number of TDs and Senators proposed amendments addressing some of ICCL’s concerns but when they were rejected by Government, they stated that they would not push for them given the urgency of the situation.25

One amendment was proposed by government - a sunset clause of 9 November 2020, which ICCL welcomed.26 As that date approached, ICCL called for a proper parliamentary debate, in- depth scrutiny of the law and an opportunity to improve the legislation based on lessons from the previous eight months. The date for renewal offered the Oireachtas the opportunity to reopen some of the issues that were put aside during the debate in March. However, ICCL was disappointed to learn two weeks before the date for renewal that the legislation was due to be debated for 45 minutes. Following advocacy by ICCL and others underlining the importance of sufficient time for debate this was extended, but ultimately only lasted two hours.27 We call on Government to ensure meaningful, robust Oireachtas debate, as well as a review of the use of powers within emergency legislation every time renewal is proposed. To disallow sufficient debate after a significant period of learning would undermine a key pillar of our democracy – Oireachtas scrutiny of law, as well as the need to ensure law responds appropriately to proven need.

(ii) Other Primary Legislation in response to Covid-19Other primary legislation introduced by the Government expanded Garda powers further in a variety of ways. The Criminal Justice (Enforcement Powers) (Covid-19) Act 202028 allowed for the inspection of premises without a warrant, and closure of premises orders by Gardaí. ICCL expressed concern at the wide discretion afforded to Gardaí under the Act and questioned the feasibility and necessity of the Act, given the provisions relating to some premises appeared impossible to enforce, such as the so called ‘pub grub regulations’ requiring people to order a meal costing a minimum of €9 when ordering drinks in a pub. We also expressed concern that the powers of inspection and intervention afforded to An Garda Síochána may affect community relations. We echoed these concerns when the Health (Amendment) Act

25 See for example https://www.kildarestreet.com/debates/?id=2020-03-19a.89&s=preservation+and+protection+and+other+emergency+measures+2020-03-18..2020-03-20

26 See ICCL, Monitoring Human Rights during the Pandemic, Update 1, 13-20 March 2020.27 Jack Horgan Jones, Extra Day to Dáil debate on extending State’s powers during pandemic, The Irish Times, 20 October 2020.28 Criminal Justice (Enforcement Powers) (Covid-19) Act 2020.29 Health (Amendment) Act 2021.

202129 was introduced, which provided for fixed penalty notices (fines) for breaches of many of the restrictions. This Act significantly changed the enforcement landscape given that prior to this Act, a person could only be punished for breaching the Covid-19 restrictions after a decision by the DPP to pursue the case and a criminal trial.

These issues are considered in more detail in the section below on policing.

If Government intends to renew the Emergency Legislation we call for the following amendments to better meet principles 2 and 3 outlined above – that law must be subject to scrutiny and must be compatible with human rights:

• Need for a meaningful proportionality test: A requirement that Government would carry out a meaningful proportionality test when restricting rights, including by ensuring all limits on rights were the least restrictive possible to achieve the aim of protecting public health.

• Better Consultation: A requirement for consultation with the Irish Human Rights and Equality Commission whenever regulations are made that severely impact rights.

• Better Scrutiny: A requirement that the Oireachtas has pre-legislative scrutiny over each set of regulations unless the particular exigency of the public health situation requires an urgent response.

• Oireachtas Approval: The Oireachtas should be required to approve regulations within a certain period of time.

• Non-discrimination clauses: - A non-discrimination clause in s.31A(2) of the

Health Act 1947, as amended by s.10 of the Emergency Legislation. This section lists the factors that the Minister must have regard to when taking measures to prevent the spread of the virus.

- A similar non-discrimination clause in s.11 which amends the Public Health Act 1947 with the introduction of s.38A. This section gives broad powers to medical officers to detain individuals. Section 38A(2) lists factors a health worker must have regard to when making a decision to detain an individual and non-discrimination would be an appropriate factor to add.

https://www.kildarestreet.com/debates/?id=2020-03-19a.89&s=preservation+and+protection+and+other+emergency+measures+2020-03-18..2020-03-20

https://www.kildarestreet.com/debates/?id=2020-03-19a.89&s=preservation+and+protection+and+other+emergency+measures+2020-03-18..2020-03-20

https://www.iccl.ie/wp-content/uploads/2020/06/Update-1-Your-rights-in-the-pandemic.pdf

https://www.irishtimes.com/news/ireland/irish-news/extra-day-to-d%C3%A1il-debate-on-extending-state-s-powers-during-pandemic-1.4386040

http://www.irishstatutebook.ie/eli/2020/act/14/enacted/en/html



The fact that the legislation was rushed through both houses of the Oireachtas in three days prevented proper in-depth scrutiny of the Bill. A number of TDs and Senators proposed amendments addressing some of ICCL’s concerns but when they were rejected by Government, they stated that they would not push for them given the urgency of the situation.25

One amendment was proposed by government - a sunset clause of 9 November 2020, which ICCL welcomed.26 As that date approached, ICCL called for a proper parliamentary debate, in- depth scrutiny of the law and an opportunity to improve the legislation based on lessons from the previous eight months. The date for renewal offered the Oireachtas the opportunity to reopen some of the issues that were put aside during the debate in March. However, ICCL was disappointed to learn two weeks before the date for renewal that the legislation was due to be debated for 45 minutes. Following advocacy by ICCL and others underlining the importance of sufficient time for debate this was extended, but ultimately only lasted two hours.27 We call on Government to ensure meaningful, robust Oireachtas debate, as well as a review of the use of powers within emergency legislation every time renewal is proposed. To disallow sufficient debate after a significant period of learning would undermine a key pillar of our democracy – Oireachtas scrutiny of law, as well as the need to ensure law responds appropriately to proven need.

(ii) Other Primary Legislation in response to Covid-19Other primary legislation introduced by the Government expanded Garda powers further in a variety of ways. The Criminal Justice (Enforcement Powers) (Covid-19) Act 202028 allowed for the inspection of premises without a warrant, and closure of premises orders by Gardaí. ICCL expressed concern at the wide discretion afforded to Gardaí under the Act and questioned the feasibility and necessity of the Act, given the provisions relating to some premises appeared impossible to enforce, such as the so called ‘pub grub regulations’ requiring people to order a meal costing a minimum of €9 when ordering drinks in a pub. We also expressed concern that the powers of inspection and intervention afforded to An Garda Síochána may affect community relations. We echoed these concerns when the Health (Amendment) Act

25 See for example https://www.kildarestreet.com/debates/?id=2020-03-19a.89&s=preservation+and+protection+and+other+emergency+measures+2020-03-18..2020-03-20

26 See ICCL, Monitoring Human Rights during the Pandemic, Update 1, 13-20 March 2020.27 Jack Horgan Jones, Extra Day to Dáil debate on extending State’s powers during pandemic, The Irish Times, 20 October 2020.28 Criminal Justice (Enforcement Powers) (Covid-19) Act 2020.29 Health (Amendment) Act 2021.

202129 was introduced, which provided for fixed penalty notices (fines) for breaches of many of the restrictions. This Act significantly changed the enforcement landscape given that prior to this Act, a person could only be punished for breaching the Covid-19 restrictions after a decision by the DPP to pursue the case and a criminal trial.

These issues are considered in more detail in the section below on policing.

If Government intends to renew the Emergency Legislation we call for the following amendments to better meet principles 2 and 3 outlined above – that law must be subject to scrutiny and must be compatible with human rights:

• Need for a meaningful proportionality test: A requirement that Government would carry out a meaningful proportionality test when restricting rights, including by ensuring all limits on rights were the least restrictive possible to achieve the aim of protecting public health.

• Better Consultation: A requirement for consultation with the Irish Human Rights and Equality Commission whenever regulations are made that severely impact rights.

• Better Scrutiny: A requirement that the Oireachtas has pre-legislative scrutiny over each set of regulations unless the particular exigency of the public health situation requires an urgent response.

• Oireachtas Approval: The Oireachtas should be required to approve regulations within a certain period of time.

• Non-discrimination clauses: - A non-discrimination clause in s.31A(2) of the

Health Act 1947, as amended by s.10 of the Emergency Legislation. This section lists the factors that the Minister must have regard to when taking measures to prevent the spread of the virus.

- A similar non-discrimination clause in s.11 which amends the Public Health Act 1947 with the introduction of s.38A. This section gives broad powers to medical officers to detain individuals. Section 38A(2) lists factors a health worker must have regard to when making a decision to detain an individual and non-discrimination would be an appropriate factor to add.


30 ICCL, Monitoring Rights During the Pandemic, https://www.iccl.ie/iccl-monitoring-rights-during-the-pandemic/. 31 Jack Power, Civil liberties group concerned at how Covid-19 laws being drawn up, 29 August 2020, https://www.irishtimes.com/news/ireland/

irish-news/civil-liberties-group-concerned-at-how-covid-19-laws-being-drawn-up-1.434209032 IHREC, Ireland’s Emergency Powers during the Covid-19 pandemic) February 2021. P.10433 IHREC, Ireland’s Emergency Powers during the Covid-19 pandemic) February 2021. P.10434 Houses of the Oireachtas, Special Committee on Covid-19 Response, Final Report, 6 October 2020.

• Limits on Broad Powers:- Section 31A(1)(h) of the Health Act 1947, as

amended by s.10 of the Emergency Legislation, gives the Minister for Health the power to make regulations that allow him to take “any other measures that the Minister considers necessary in order to prevent, limit, minimise or slow the spread of Covid-19”. The creation of this broad power requires explicit limitations such as a requirement to be ‘urgent, necessary and proportionate’.

- Section 31A(1)(j) provides that the Minister may make regulations on “such additional, incidental, consequential or supplemental matters as the Minister considers necessary or expedient for the purposes of giving full effect to the regulations.” The word “expedient” should be removed as this creates too low a threshold for the passing of measures that so significantly infringe on rights. Expediency can never be a factor that alone can be used to justify rights infringements.

• Regular review: A requirement for a substantive review of the exercise of emergency powers both by the Minister for Health and by An Garda Síochána should be included.

• Human Rights Impact Assessment: A requirement to carry out a human rights impact assessment should be included.

(iii) Regulations made under the Emergency LegislationThe fourth principle above requires that laws must be clear, precise and accessible.

Since the Minister for Health signed the first set of regulations made under the Emergency Legislation in April 2020, ICCL has monitored and analysed key provisions that infringed rights.30 In particular we called for proportionate sanctions, including the removal of criminal penalties for the exercise of rights and for an explicit exception to the regulations on events involving the safe exercise of the right to protest.

We called for better processes including greater transparency in decision-making; better consultation with key stakeholders; Oireachtas scrutiny; publication of regulations before they took on the force of law; and better and clearer messaging to the public.31

In the first weeks of the pandemic, it was understandable that regulations would be drafted and published quickly to ensure Government could respond to the uncertain and worsening public health situation. However, as the pandemic wore on, ICCL considers that the process for drafting, publishing, and communicating the content of regulations could have been much improved. In our submission to the Oireachtas in September 2020, we noted that there was a general sense of confusion around what was in each set of regulations and we called for much greater clarity. We note the observation in the Irish Human Rights and Equality Commission (IHREC) report on the exercise of the Covid-19 emergency powers that:

“The Government’s making and presentation of regulations raises serious rule of law concerns. Regulations have applied retroactively, are frequently not published for several days after they are made, are misleadingly described in official communications, and are inadequately distinguished from public health advice.”32

We support IHREC’s strong recommendation that the Government “should at all times and in all communications maintain a clear distinction between measures that are legally obligatory and public health advice. In particular, the Government should not present public health advice as if it were criminally enforceable.”33

We recognise that in the last few months there has been a marked improvement in publishing new regulations before they come into force but the issues of prior scrutiny, consultation, and better, targeted communication of their contents remain unresolved. We also support the recommendation made in October 2020 by the Special Oireachtas Committee on Covid-19 Response that:

“All sectoral committees should review the relevant Covid-19 legislation which is regulating activity in their sectors and every proposal to extend regulations after 9 November 2020 should require approval by the Houses of the Oireachtas or the relevant joint committee.”34

Penal Provisions: The Emergency Legislation created the power for the Minister to make regulations restricting the rights to freedom of movement, assembly and association. The legislation gave the

https://www.iccl.ie/iccl-monitoring-rights-during-the-pandemic/

https://www.irishtimes.com/news/ireland/irish-news/civil-liberties-group-concerned-at-how-covid-19-laws-being-drawn-up-1.4342090




https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/special_committee_on_covid_19_response/reports/2020/2020-10-09_final-report-of-the-special-committee-on-covid-19-response-sccr004_en.pdf




Minister the power to classify particular restrictions as ‘penal provisions’. Any penal provision could attract up to six months in prison or a €2,500 fine following prosecution.35 Subsequent regulations and primary legislation have created the power for Gardaí to impose on-the-spot fines for breach of Covid-19 Regulations.36 This is explored in more depth in the policing section later in this report.

ICCL voiced concerns from the outset that enforcement of public health guidance should be primarily education and advice- based. We understand that at the very beginning of the crisis – when there was great uncertainty and anxiety about how the disease would affect the country and protecting lives was paramount – ensuring the population’s behaviour through enforceable rules appeared necessary. However, ICCL considered that 6 months in prison and a €2,500 fine were disproportionate criminal sanctions for breaching rules requiring people to i) stay at home and ii) not to move outside 2km from their home. We highlighted the following principles that should always apply to the creation of criminal sanctions:

i. Criminal sanctions should always be a measure of last resort.

ii. New criminal offences must be drafted clearly and narrowly to ensure they are easily understood and not subject to overbroad discretionary police powers.

ii. Where alternative enforcement measures can be appropriately implemented they should be considered before criminal sanctions.

The first ten days of the policing operation that sought to enforce the guidelines were done without regulations underpinning the public health advice. It is significant that An Garda Síochána reported widespread compliance with the restrictions before criminal penalties were introduced. ICCL considers that this suggests criminal sanctions are not necessary to ensure the general population follows public health guidelines when their content and rationale are clearly communicated.

During 2020, we noted behavioural science research that strongly suggested the best way of ensuring

35 Health Act 1947, s.31A(12).36 Health Act 1947, s. 31A(6C).37 NUI Galway global Covid-19 study finds strong link between health messaging and behaviour, NUIG News and Events Page, 5 October 2020.

Claire O’Connell, Encouraging health behaviours to tackle the pandemic, The Irish Times, 28 May 2020; Pete Lunn, Much of what we think about Covid-19 is wrong. We need to change the conversation, The Irish Times, 10 October 2020; Molly Byrne, Behaviour is best Covid-19 vaccine available, The Irish Times, 26 October 2020.

38 Section 31B, Health Act 1947 as amended by s.10 of the Health (Preservation and Protection and Other Emergency Measures in the Public Interest) Act 2020.

compliance with public health guidelines was through positive reinforcement of messaging, targeted communication and the provision of key supports or “capability, opportunity and motivation.”37 In light of this research, ICCL has consistently called on the Government to use criminal law in a sparing manner and only where clear public health advice grounded in scientific medical evidence is communicated effectively and efforts to ensure compliance through consent have demonstrably failed. We see this as a key area of improvement for the future.

Affected Areas and end dates: The primary legislation gave the Minister the power to designate a particular geographic area as an ‘affected area’ where there was “sustained transmission” of the virus.38 Regulations under the Act cannot impose restrictions in an area unless it is designated as an affected area. The Minister chose to designate the whole country as an ‘affected area’ so each set of regulations applied to the entire country. Except for a brief period during summer 2020, this remained the case even as it became clear that the numbers affected by the virus were very different in different regions of the country. ICCL considers the potential to designate different areas of the country as an ‘affected area’ is a tool that can be used to respond in a more targeted manner to the behaviour of the virus and may assist with ensuring restrictions are proportionate.

The fact that each set of regulations had a specific time frame was positive. However, communication about the end date of some regulations was lacking and certain regulations were extended without proper advance notice. There has been consistent and obvious confusion among the public about what regulations were in force and when.

(iv) Need for evidence-based and transparent decision makingLaws and policies should be developed on the basis of demonstrable need rooted in high quality evidence. Research and data collection are vital to provide the evidence that must inform decision making. This is a key human rights principle. The public must have confidence that decisions are being made in a considered manner and are grounded in strong and clear processes.

https://www.nuigalway.ie/about-us/news-and-events/news-archive/2020/october/nui-galway-global-covid-19-study-finds-strong-link-between-health-messaging-and-behaviour.html

https://www.irishtimes.com/news/science/encouraging-health-behaviours-to-tackle-the-pandemic-1.4260137

https://www.irishtimes.com/life-and-style/health-family/much-of-what-we-think-about-covid-19-is-wrong-we-need-to-change-the-conversation-1.4375838

https://www.irishtimes.com/life-and-style/health-family/much-of-what-we-think-about-covid-19-is-wrong-we-need-to-change-the-conversation-1.4375838

https://www.irishtimes.com/opinion/behaviour-is-best-covid-19-vaccine-available-1.4390925

https://www.irishtimes.com/opinion/behaviour-is-best-covid-19-vaccine-available-1.4390925


Minister the power to classify particular restrictions as ‘penal provisions’. Any penal provision could attract up to six months in prison or a €2,500 fine following prosecution.35 Subsequent regulations and primary legislation have created the power for Gardaí to impose on-the-spot fines for breach of Covid-19 Regulations.36 This is explored in more depth in the policing section later in this report.

ICCL voiced concerns from the outset that enforcement of public health guidance should be primarily education and advice- based. We understand that at the very beginning of the crisis – when there was great uncertainty and anxiety about how the disease would affect the country and protecting lives was paramount – ensuring the population’s behaviour through enforceable rules appeared necessary. However, ICCL considered that 6 months in prison and a €2,500 fine were disproportionate criminal sanctions for breaching rules requiring people to i) stay at home and ii) not to move outside 2km from their home. We highlighted the following principles that should always apply to the creation of criminal sanctions:

i. Criminal sanctions should always be a measure of last resort.

ii. New criminal offences must be drafted clearly and narrowly to ensure they are easily understood and not subject to overbroad discretionary police powers.

ii. Where alternative enforcement measures can be appropriately implemented they should be considered before criminal sanctions.

The first ten days of the policing operation that sought to enforce the guidelines were done without regulations underpinning the public health advice. It is significant that An Garda Síochána reported widespread compliance with the restrictions before criminal penalties were introduced. ICCL considers that this suggests criminal sanctions are not necessary to ensure the general population follows public health guidelines when their content and rationale are clearly communicated.

During 2020, we noted behavioural science research that strongly suggested the best way of ensuring

35 Health Act 1947, s.31A(12).36 Health Act 1947, s. 31A(6C).37 NUI Galway global Covid-19 study finds strong link between health messaging and behaviour, NUIG News and Events Page, 5 October 2020.

Claire O’Connell, Encouraging health behaviours to tackle the pandemic, The Irish Times, 28 May 2020; Pete Lunn, Much of what we think about Covid-19 is wrong. We need to change the conversation, The Irish Times, 10 October 2020; Molly Byrne, Behaviour is best Covid-19 vaccine available, The Irish Times, 26 October 2020.

38 Section 31B, Health Act 1947 as amended by s.10 of the Health (Preservation and Protection and Other Emergency Measures in the Public Interest) Act 2020.

compliance with public health guidelines was through positive reinforcement of messaging, targeted communication and the provision of key supports or “capability, opportunity and motivation.”37 In light of this research, ICCL has consistently called on the Government to use criminal law in a sparing manner and only where clear public health advice grounded in scientific medical evidence is communicated effectively and efforts to ensure compliance through consent have demonstrably failed. We see this as a key area of improvement for the future.

Affected Areas and end dates: The primary legislation gave the Minister the power to designate a particular geographic area as an ‘affected area’ where there was “sustained transmission” of the virus.38 Regulations under the Act cannot impose restrictions in an area unless it is designated as an affected area. The Minister chose to designate the whole country as an ‘affected area’ so each set of regulations applied to the entire country. Except for a brief period during summer 2020, this remained the case even as it became clear that the numbers affected by the virus were very different in different regions of the country. ICCL considers the potential to designate different areas of the country as an ‘affected area’ is a tool that can be used to respond in a more targeted manner to the behaviour of the virus and may assist with ensuring restrictions are proportionate.

The fact that each set of regulations had a specific time frame was positive. However, communication about the end date of some regulations was lacking and certain regulations were extended without proper advance notice. There has been consistent and obvious confusion among the public about what regulations were in force and when.

(iv) Need for evidence-based and transparent decision makingLaws and policies should be developed on the basis of demonstrable need rooted in high quality evidence. Research and data collection are vital to provide the evidence that must inform decision making. This is a key human rights principle. The public must have confidence that decisions are being made in a considered manner and are grounded in strong and clear processes.


39 ICCL, Monitoring Rights During the Pandemic, Update 21 1-7 August 2020.40 See for example ICCL, Submission to Oireachtas Covid-19 Committee, September 2020.41 ICCL, Submission to Oireachtas Covid-19 Committee, September 2020.42 IHREC, Covid-19 and the Exercise of Emergency Powers, p.18.43 See IHREC, Implementing the Public Sector Equality and Human Rights Duty, March 2019.44 IHREC, Guidance Note on Covid-19 and the Public Sector Equality and Human Rights Duty.

Critically, we believe that there must be clear lines of separation between NPHET’s formal advice to Government, the medical science upon which they are basing that advice, the Government’s interpretation of that advice (including where it is accepting or rejecting that advice); and guidelines or legal requirements which Government chooses to introduce on foot of that advice, which are then demonstrated to be in line with the State’s human rights obligations.

We note that IHREC has highlighted that the Public Sector Equality and Human Rights Duty applies to all public sector actors, including the HSE, the Department of Health, the Chief Medical Officer and NPHET.42 This means there is a clear duty on all of these actors to promote equality, combat discrimination and protect the human rights of all those who use their services.43 In the context of Covid-19, IHREC has stated that in order to fulfil this duty, public bodies must:

“carry out an assessment of the equality and human rights issues relevant to their function and purpose; develop policies, plans and actions to address these issues; and report annually on progress and achievements. As public bodies move towards recovery and longer term planning, this provides an important framework to systematically consider and reflect the particular needs of staff and service users at risk of inequality, discrimination or disproportionate impact, and helps to mitigate and avoid unintended consequences.”44

ICCL would welcome a public commitment to fulfilling this duty from all relevant public bodies in the context of decision making that leads to restrictions on rights.

ICCL has repeatedly called on Government to conduct a human rights impact assessment of all restrictions on rights to ensure laws and policies respond to real needs, discrimination is avoided, and differential impacts are minimised and mitigated by key supports.39

ICCL expressed concern on a number of occasions that there was a lack of transparency in relation to the processes and grounds for the decisions that led to the different levels of restrictions on rights.40 ICCL supports the essential work of NPHET and we believe it is vital to ensure that its actual and perceived independence and integrity as an expert advisory body is protected. We believe that the composition and procedures of any expert body advising the Government must ensure a full range of public health and social perspectives and must be adequately resourced.

In our submission to the Oireachtas Covid Committee in September 2020, we highlighted the need for more transparency as well as the approach in other jurisdictions where a range of experts sat on Government’s health advisory boards during the pandemic.41 We believe that the composition of NPHET could be improved by adding a broader range of experts such as mental health experts, sociologists and a human rights expert who can give a broader view on the impact of restrictions on public health and on rights.

At least some NPHET meetings should be held in public. The Government should also ensure that NPHET has sufficient resources to support its work, transparency of its decision making, and broader composition.

"Laws and policies should be developed on the basis of demonstrable need rooted in high quality evidence. Research and data collection are vital to provide the evidence that must inform decision making. This is a key human rights principle."


https://www.iccl.ie/iccl-submission-to-covid-committee-7-sept-2020/

https://www.iccl.ie/iccl-submission-to-covid-committee-7-sept-2020/

https://www.ihrec.ie/app/uploads/2019/03/IHREC_Public_Sector_Duty_Final_Eng_WEB.pdf

https://www.ihrec.ie/app/uploads/2020/08/Guidance-Note-on-COVID-19-and-the-Public-Sector-Equality-and-Human-Right-Duty-002.pdf


FOR GOVERNMENT

1. Where emergency situations require a response that restricts the exercise of rights, the following six principles should be taken into account:

PRINCIPLE 1: Rights can be limited but not suspended without a derogation.

PRINCIPLE 2: Legislation should be subject to scrutiny, consultation and oversight by the Oireachtas.





2. When legislating for emergency measures in the future and if the Government is to renew the Health (Preservation and Protection and Other Emergency Measures in the Public Interest) Act 2020, include the following:

i. Sunset clause: Ensure all emergency legislation has a sunset clause and, when legislation is due to be renewed, ensure sufficient time for meaningful Oireachtas debate and a human rights review.

ii. Need for a meaningful proportionality test: Establish a statutory requirement that Government would carry out a meaningful proportionality test when restricting rights, including by making best efforts to ensure all limits on rights are the least restrictive possible to achieve their objectives.

iii. Better Consultation: Establish a statutory requirement for consultation with the Irish Human Rights and Equality Commission whenever regulations are made that severely impact rights.

iv. Better Scrutiny: Establish a statutory requirement that the Oireachtas has pre-legislative scrutiny over each set of regulations unless the exigency of the public health situation requires an urgent response.

v. Oireachtas Approval: The Oireachtas should be required to approve regulations within a set period of time.

vi. Non-discrimination clauses. Include a broad non-discrimination clause in all emergency legislation to ensure government avoids potential discriminatory impacts of the law. Amend the current Emergency Legislation as follows: (i) Introduce a non-discrimination clause in s.31A(2) of the Health Act 1947, as amended by s.10 of

the Emergency Legislation. This section lists the factors that the Minister must have regard to when taking measures to prevent the spread of the virus.

(ii) A similar non-discrimination clause in s.11 which amends the Public Health Act 1947 with the introduction of s.38A. This section gives broad powers to medical officers to detain individuals. S.38A(2) lists factors a health worker must have regard to when making a decision to detain an individual.

1.3 Recommendations


FOR GOVERNMENT









i. Sunset clause: Ensure all emergency legislation has a sunset clause and, when legislation is due to be renewed, ensure sufficient time for meaningful Oireachtas debate and a human rights review.

ii. Need for a meaningful proportionality test: Establish a statutory requirement that Government would carry out a meaningful proportionality test when restricting rights, including by making best efforts to ensure all limits on rights are the least restrictive possible to achieve their objectives.

iii. Better Consultation: Establish a statutory requirement for consultation with the Irish Human Rights and Equality Commission whenever regulations are made that severely impact rights.

iv. Better Scrutiny: Establish a statutory requirement that the Oireachtas has pre-legislative scrutiny over each set of regulations unless the exigency of the public health situation requires an urgent response.

v. Oireachtas Approval: The Oireachtas should be required to approve regulations within a set period of time.

vi. Non-discrimination clauses. Include a broad non-discrimination clause in all emergency legislation to ensure government avoids potential discriminatory impacts of the law. Amend the current Emergency Legislation as follows: (i) Introduce a non-discrimination clause in s.31A(2) of the Health Act 1947, as amended by s.10 of



1.3 Recommendations


vii. Limits on Broad Powers: Ensure emergency legislation does not create overly broad powers for any State actor. Amend the current Emergency Legislation as follows:(i) S.31A(1)(h) of the Health Act 1947, as amended by s.10 of the Emergency Legislation gives the

Minister for Health the power to make regulations that allows him to take “any other measures that the Minister considers necessary in order to prevent, limit, minimise or slow the spread of Covid-19”. This broad power requires explicit limitations such as a requirement to be ‘urgent, necessary and proportionate’.

(ii) S.31A(1)(j) provides that the Minister may make regulations on “such additional, incidental, consequential or supplemental matters as the Minister considers necessary or expedient for the purposes of giving full effect to the regulations.” The word “expedient” should be removed as this creates too low a threshold for the passing of measures that so significantly infringe on rights. Expediency can never be a factor that alone can be used to justify rights infringements.

viii. Regular review: Establish a statutory requirement for a substantive review of the exercise of emergency powers.

ix. Human Rights Impact Assessment: Establish a requirement to carry out a human rights impact assessment of the legislation should be included.

3. When drafting regulations under emergency legislation that restrict rights:

i. Publish emergency regulations before they enter into force.

ii. Consult with the Irish Human Rights and Equality Commission where laws infringe rights.

iii. Demonstrate that every restriction on rights has been subject to a proportionality assessment.

iv. Enable pre-legislative scrutiny and oversight by the Oireachtas.

v. Ensure targeted, timely communication of restrictions on rights ensuring there is no blurring of lines between law and guidance.

vi. Focus on ensuring compliance with public health advice through positive reinforcement of messaging, targeted communication and the provision of key supports.

vii. Use criminal law as a means of enforcement in a sparing manner and only where clear public health advice grounded in scientific medical evidence is communicated effectively and efforts to ensure compliance through consent have demonstrably failed.

viii. Utilise the ‘affected areas’ provision in the Emergency Legislation to ensure a targeted approach to rights restrictions.

4. For all decision making in an emergency that results in restrictions on rights:

i. Gather data, including by conducting a human rights impact assessment, on all restrictions on rights to inform decision making and to ensure laws and policies respond to real needs, discrimination is avoided, and differential impacts are minimised and mitigated by key supports.

ii. Ensure transparency and effective communication of decision-making processes so the public understands the grounds for decisions that lead to different levels of restrictions on rights.

iii. Improve composition of expert advisory teams, including the current team- NPHET, by adding a broader range of experts beyond public health specialists, including a human rights expert.

iv. Ensure public sector actors understand and fulfil the public sector human rights and equality duty required under s.42 of the Irish Human Rights and Equality Commission Act 2014.


IMPACT OF THE COVID-19 RESPONSE ON THE JUSTICE

SYSTEM

2

Human Rights in a PandemicA HUMAN RIGHTS ANALYSIS OF THE

IRISH GOVERNMENT’S RESPONSE TO COVID-19


IMPACT OF THE COVID-19 RESPONSE ON THE JUSTICE

SYSTEM

2




45 Aine Bhreathnach and Shalom Binchy, The Experiences of Criminal Defence Solicitors in Garda stations during Covid-19, 2020, p. 10. The findings are limited as the 25 respondents self-selected to participate in the survey, however, they provide a unique “narrative snapshot” of the experiences of criminal defence solicitors during the onset of the pandemic.

46 Aine Bhreathnach and Shalom Binchy, The Experiences of Criminal Defence Solicitors in Garda stations during Covid-19, 2020, p. 10.47 See Courts Service announcement, dated 13 March 2020.48 Courts Service, “Virtual Remote Courts Piloted in Ireland this morning”, 20 April 2020.49 ‘Jury trials may resume by end of March as backlog extends to two years’, Irish Times, 25 February 2021.50 ‘New Measures in the District Court 7th Jan to 1st Mar 2021’, 6 January 2021.51 See reference to backlog in ‘Almost 5,000 facing court prosecution for non-payment of Covid-19 fines’, Irish Times, 2 April 2021.52 See for example, Conor Gallagher, Domestic abuse victims to be allowed seek barring orders remotely, The Irish Times, 28 December 2020.

2. Impact of the Covid-19 response on the justice system2.1 Impact of restrictions on access to a lawyer The right of access to a lawyer has been negatively affected by Covid-19 restrictions. In May 2020, a solicitors’ firm, Shalom Binchy Solicitors, conducted an online survey to learn more about the experiences of criminal defence solicitors in providing legal advice to persons detained in Garda stations during the initial stage of the Covid-19 pandemic (March to May 2020).45 The findings highlight that “there is no comprehensive or consistent approach being taken to protect the right to legal advice of suspects in Garda stations.”46 This included differences between Garda stations in how social distancing and PPE guidelines were complied with and no provision for remote access to a lawyer during police questioning. ICCL research indicates that there have been limited changes to the system since that survey. While the use of PPE may have improved, there is still no provision for remote access to a lawyer during police questioning. ICCL highlights that all means should be provided to lawyers to facilitate proper consultations that comply with public health guidelines.

2.2 Impact of restrictions on criminal court hearingsIn March 2020, the Courts Service announced that the courts would temporarily suspend all business after the Irish Government announced that the country would enter a period of temporary restrictions on gatherings, events and movement.47 Initially, only emergency applications were heard by the Courts but contingency plans were established in mid-March which have been reviewed periodically. The Supreme Court and Court of Appeal have operated remotely since 20 April 2020 and have been the least affected by the country-wide shut down48.

The Criminal Courts have placed different limits on

what cases could be heard at different times during the pandemic. This has resulted in lengthy delays and a backlog of cases.49 Initially, only applications which were urgent, such as new arrests, domestic violence matters and those involving persons in custody, could be heard in the District Court. This expanded over time and the District Court is, as of April 2021, hearing matters which exclusively involve State witnesses, i.e. road traffic or public order matters where the only witnesses are Gardaí, or those involving domestic violence, with other matters being automatically put back to a date in the future.50 Although attempts have been made to safely proceed with criminal matters over the last year, the current position requires improvement.

Trials are now being listed for summer of 2023 due to the severe backlog of cases51. This means that accused persons must now wait for a significant period of time before they can expect to be tried. Aside from the difficulties that can be faced in trying matters a number of years after they have occurred, accused persons may also opt to enter a guilty plea simply to get matters over with. ICCL recommends that additional judges be allocated to the criminal courts to deal with the growing backlog of cases.

Other matters, such as sentencing and arraignments, have proceeded and staggered lists have been introduced to attempt to adhere to COVID-19 guidelines. Staggered lists means that cases are given a 10–15-minute time slot in which they are allocated to be heard. This is a positive development and should be retained beyond the pandemic.

ICCL would underline the importance of retaining access to the Courts to the greatest degree possible with resources devoted to ensuring public health guidelines, such as mask wearing and social distancing, are implemented to facilitate wider access. Where cases are being limited, we would stress the need to prioritise access for at-risk individuals. We note that retaining access to the courts for domestic violence victims was positive and we commend proposals to expand remote hearings for domestic violence victims seeking protection orders.52

https://sbinchy.ie/wp-content/uploads/2020/05/Shalom-Binchy-Solicitors-Survey-Findings-20_05_2020.pdf

https://sbinchy.ie/wp-content/uploads/2020/05/Shalom-Binchy-Solicitors-Survey-Findings-20_05_2020.pdf

https://www.courts.ie/news/Statements-respect-arrangement-courts-%E2%80%93-13th-march-2020

https://www.courts.ie/content/virtual-remote-courts-piloted-ireland-morning

https://www.irishtimes.com/news/crime-and-law/jury-trials-may-resume-by-end-of-march-as-backlog-extends-to-two-years-1.4495367.

https://www.courts.ie/news/new-measures-district-court-7th-jan-1st-mar-2021-0.

https://www.irishtimes.com/news/crime-and-law/almost-5-000-facing-court-prosecution-for-non-payment-of-covid-19-fines-1.4527367

https://www.irishtimes.com/news/crime-and-law/domestic-abuse-victims-to-be-allowed-seek-barring-orders-remotely-1.4446060


53 Article 38.5 of the Irish Constitution.54 See various Courts Service announcements such as https://www.courts.ie/news/covid-19-position-criminal-courts-justice-friday-13th-march;

https://courts.ie/news/circuit-court-notice-court-business-during-level-5-restrictions;https://www.courts.ie/news/notice-circuit-court-criminal-jury-trials-will-recommence-12th-april.

55 ‘Courts Service to use Croke Park to hear criminal trials’, RTE News, 14 April 2021; Supreme Court relocates to dining hall to hear appeal, RTE News, 22 June 2020; ‘Peace Activists Colm Roddy and Dave Donnellan on Trial - Report from Days 1 & 2 in Court’, Shannonwatch.

56 Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020, s. 23(3), (14).57 See the Courts website, COVID-19 updates section.58 General Statement of the Chief Justice, 8 May 2020.

Challenges posed by jury trials: One of the main challenges for the criminal courts is the requirement for jury trials. It is the constitutional right of all accused persons, save those before the Special Criminal Court, to be tried by a jury of their peers53. The Courts have continuously struggled to balance adherence with COVID-19 guidelines and regulations with the right of accused persons to be tried without delay by a jury. In the Circuit Court and the Central Criminal Court, jury trials were suspended for the most part, except during August 2020 and mid-November to December 202054.

Jury trials in all courts resumed on 12 April 2021, however, due to limited spaces suited to holding socially distanced trials as well as the significant backlog of cases, progress has been slow and limited matters are being heard. A number of steps have been taken by the Courts Service to attempt to tackle these challenges, such as securing alternative venues55. ICCL recommends that the Courts Service continue to seek out potential venues which can be allocated to the hearing of criminal trials safely. ICCL considers jury trials should be maintained as far as possible with appropriate resources and facilities provided to the Courts to ensure public health guidelines, including social distancing, can be maintained.

Possibility of remote hearings: In December 2020, a new law was passed allowing for persons in custody to “attend court” via videolink.56 The Courts have issued frequent communications to keep the public and legal professionals updated as to the continuing changes in procedure in the Courts.57

ICCL considers that jury trials should proceed by invoking additional safeguards such as staggered witness times and the use of videolink. Witnesses can be sufficiently staggered to ensure that the number of persons in Court remains at an appropriate level. Legislation should also be introduced to allow jurors to hear matters via videolink from socially distanced and safe venues. This would assist with the current backlog and reduce waiting times for matters to get on for hearing.

ICCL considers that District Court hearings should

be resumed by invoking additional safeguards such as staggered hearing times and the use of videolink. District Court hearings should be prioritised and proceed with staggered hearing times and the use of videolink for witnesses where possible. Although the District Court would be operating below their usual capacity, this would be preferable to the present situation of block remands (adjournments) for the majority of hearings.

Finally, although videolink has been introduced as a partial solution to the issue of in-person hearings, remote hearings cannot be invoked in the same widespread manner as in civil law. This was recognised by Chief Justice Clarke in a Statement on the 8 May 2020 where he stated: “The presidents have always made clear that there are many types of cases for which remote hearings are not suitable. That continues to be the case”58.

Delays before sentencing: In criminal matters, accused persons are spending additional time in custody while they await sentencing. Barristers have told the ICCL that these wait times are now often extended by delays in obtaining reports from the Probation Service and other relevant services. Due to the limited availability of videolink consultations with accused persons who are in custody, further delays are being experienced in taking instructions. ICCL recommends the availability of videolink consultation for prisoners be expanded. This would allow accused persons to consult with their lawyers and the Probation Service or other relevant services, e.g. psychiatric assessments, and will thereby reduce the waiting time for sentencing.

Alternatives to prosecution: Given the growing backlog and the fact that remote hearings are not appropriate for criminal trials, alternatives to prosecution should be considered. The Director of Public Prosecutions should consider alternatives to prosecution in appropriate cases. Minor offences or prosecutions which do not have a strong prospect of success should not be pursued. The Director and her officers should proactively engage with Defence counsel to ensure that limited court resources are being prioritised for serious cases.

https://www.courts.ie/news/covid-19-position-criminal-courts-justice-friday-13th-march

https://courts.ie/news/circuit-court-notice-court-business-during-level-5-restrictions

https://www.courts.ie/news/notice-circuit-court-criminal-jury-trials-will-recommence-12th-april

https://www.courts.ie/news/notice-circuit-court-criminal-jury-trials-will-recommence-12th-april

https://www.shannonwatch.org/content/peace-activists-colm-roddy-and-dave-donnellan-trial-report-days-1-2-court

https://www.courts.ie/covid-19-response-updates

https://www.courts.ie/news/general-Statement-chief-justice-08052020.


53 Article 38.5 of the Irish Constitution.54 See various Courts Service announcements such as https://www.courts.ie/news/covid-19-position-criminal-courts-justice-friday-13th-march;

https://courts.ie/news/circuit-court-notice-court-business-during-level-5-restrictions;https://www.courts.ie/news/notice-circuit-court-criminal-jury-trials-will-recommence-12th-april.

55 ‘Courts Service to use Croke Park to hear criminal trials’, RTE News, 14 April 2021; Supreme Court relocates to dining hall to hear appeal, RTE News, 22 June 2020; ‘Peace Activists Colm Roddy and Dave Donnellan on Trial - Report from Days 1 & 2 in Court’, Shannonwatch.

56 Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020, s. 23(3), (14).57 See the Courts website, COVID-19 updates section.58 General Statement of the Chief Justice, 8 May 2020.

Challenges posed by jury trials: One of the main challenges for the criminal courts is the requirement for jury trials. It is the constitutional right of all accused persons, save those before the Special Criminal Court, to be tried by a jury of their peers53. The Courts have continuously struggled to balance adherence with COVID-19 guidelines and regulations with the right of accused persons to be tried without delay by a jury. In the Circuit Court and the Central Criminal Court, jury trials were suspended for the most part, except during August 2020 and mid-November to December 202054.

Jury trials in all courts resumed on 12 April 2021, however, due to limited spaces suited to holding socially distanced trials as well as the significant backlog of cases, progress has been slow and limited matters are being heard. A number of steps have been taken by the Courts Service to attempt to tackle these challenges, such as securing alternative venues55. ICCL recommends that the Courts Service continue to seek out potential venues which can be allocated to the hearing of criminal trials safely. ICCL considers jury trials should be maintained as far as possible with appropriate resources and facilities provided to the Courts to ensure public health guidelines, including social distancing, can be maintained.

Possibility of remote hearings: In December 2020, a new law was passed allowing for persons in custody to “attend court” via videolink.56 The Courts have issued frequent communications to keep the public and legal professionals updated as to the continuing changes in procedure in the Courts.57

ICCL considers that jury trials should proceed by invoking additional safeguards such as staggered witness times and the use of videolink. Witnesses can be sufficiently staggered to ensure that the number of persons in Court remains at an appropriate level. Legislation should also be introduced to allow jurors to hear matters via videolink from socially distanced and safe venues. This would assist with the current backlog and reduce waiting times for matters to get on for hearing.

ICCL considers that District Court hearings should

be resumed by invoking additional safeguards such as staggered hearing times and the use of videolink. District Court hearings should be prioritised and proceed with staggered hearing times and the use of videolink for witnesses where possible. Although the District Court would be operating below their usual capacity, this would be preferable to the present situation of block remands (adjournments) for the majority of hearings.

Finally, although videolink has been introduced as a partial solution to the issue of in-person hearings, remote hearings cannot be invoked in the same widespread manner as in civil law. This was recognised by Chief Justice Clarke in a Statement on the 8 May 2020 where he stated: “The presidents have always made clear that there are many types of cases for which remote hearings are not suitable. That continues to be the case”58.

Delays before sentencing: In criminal matters, accused persons are spending additional time in custody while they await sentencing. Barristers have told the ICCL that these wait times are now often extended by delays in obtaining reports from the Probation Service and other relevant services. Due to the limited availability of videolink consultations with accused persons who are in custody, further delays are being experienced in taking instructions. ICCL recommends the availability of videolink consultation for prisoners be expanded. This would allow accused persons to consult with their lawyers and the Probation Service or other relevant services, e.g. psychiatric assessments, and will thereby reduce the waiting time for sentencing.

Alternatives to prosecution: Given the growing backlog and the fact that remote hearings are not appropriate for criminal trials, alternatives to prosecution should be considered. The Director of Public Prosecutions should consider alternatives to prosecution in appropriate cases. Minor offences or prosecutions which do not have a strong prospect of success should not be pursued. The Director and her officers should proactively engage with Defence counsel to ensure that limited court resources are being prioritised for serious cases.


Reducing the prison population: ICCL recommends that the Minister for Justice consider applications for enhanced remission and temporary release as a means to reduce the prison population. This is important given the particularly challenging conditions that imprisonment presents in a pandemic. ICCL welcomed the early efforts to reduce the prison population as part of its pandemic response59. The Irish Penal Reform Trust in their report on COVID-19, outline that the prison population was reduced by approximately 10% at the start of the pandemic in the space of one month.60 However, given the lengthy delays that persons in custody are currently experiencing, the Minister for Justice should consider suitable applications for enhanced remission and temporary release in light of these difficulties and as a mechanism to relieve prison overcrowding. There should also be encouragement of suitable prisoners to apply for such schemes of early release. Finally, the IPRT have called for the Minister for Justice to implement the Parole Act 2019 as a means by which to reduce the prison population in a consistent and effective manner.61

Coroner’s System: The Coroner’s system in Ireland has been severely impacted by Covid-19. Most inquests requiring a jury were suspended during 2020, though a small number of hearings took place through videolink.62 This has created significant backlog and delay. According to senior coroner for the Kildare District, “their absence had greater affected those who lost people through road crashes, suicide, and workplace accidents.”63 ICCL has recently published a report that contains a comprehensive analysis of the Coroner’s system and calls for urgent reforms to ensure the Government meets its Article 2 ECHR obligations to effectively investigate certain deaths.64

We note delay was already a significant problem which has now been compounded by the Covid-19 backlog. We reiterate the call for urgent reforms, in particular the need for a better resourced system with fully trained coroners operating throughout the country on a full-time basis, underpinned by standards that place support, information and answers for families front and centre.

59 Report: Covid-19 measures led to better standards in Irish prisons, Irish Examiner, 26 January 2021. See also, IPRT Report, Irish Prisons And Covid-19: One Year On.

60 IPRT, Irish Prisons And Covid-19: One Year On, p. 2.61 IPRT, Irish Prisons And Covid-19: One Year On.62 Sarah Slater, Coroners nationwide facing backlog of inquests due to Covid-19 restrictions, The Irish Times, 2 December 2020.63 David Kearns, COVID-19: Nursing and residential homes “borne the brunt” of pandemic, UCD News and Media, 14 April 2021.64 Phil Scraton and Gillian McNaull, Death Investigation, Coroners’ Inquests and the Rights of the Bereaved, Irish Council for Civil Liberties, April 2021.

2.3 Recommendations

FOR AN GARDA SÍOCHÁNA:

1. Facilitate remote access between solicitors and suspects by videolink for private consultations and during police interviews.

FOR THE DPP:

10. Consider alternatives to prosecution in appropriate cases.

FOR THE DEPARTMENT OF JUSTICE AND MINISTER FOR JUSTICE:

2. Enact amendments to the Garda Station Legal Advice Scheme to enable payment for remote consultations and advice during interviews.

3. Allocate additional judges to the criminal courts to mitigate the severe backlog of cases.

4. Consider suitable applications for enhanced remission and temporary release as a means to reduce prison overcrowding.

5. Adequately resource and prioritise reforms to the Coroner’s System that would address the backlog in inquests caused by Covid-19 and transform it into a full-time professional service.

FOR THE COURTS SERVICE:

6. Continue to seek out potential venues which can be allocated to the hearing of criminal trials safely.

7. Jury trials should proceed by invoking additional safeguards such as staggered witness times and the use of videolink.

8. District Court hearings should resume by invoking additional safeguards such as staggered hearing times and the use of videolink for witnesses.

9. Expand the availability of videolink consultation for prisoners.

https://www.irishexaminer.com/news/arid-40214369.html

https://www.iprt.ie/site/assets/files/6901/covid-19_in_prisons_one_year_on.pdf




https://www.irishtimes.com/news/crime-and-law/coroners-nationwide-facing-backlog-of-inquests-due-to-covid-19-restrictions-1.4425863

https://www.ucd.ie/newsandopinion/news/2021/april/14/covid-19nursingandresidentialhomesbornethebruntofpandemicdeathsinireland/

https://www.iccl.ie/wp-content/uploads/2021/04/ICCL-Death-Investigations-Coroners-Inquests-the-Rights-of-the-Bereaved.pdf


ROLE OF AN GARDA

SÍOCHÁNA IN THE COVID-19

RESPONSE

3




ROLE OF AN GARDA

SÍOCHÁNA IN THE COVID-19

RESPONSE

3




65 Commission on the Future of Policing in Ireland, The Future of Policing in Ireland, 18 September 2018.66 Government of Ireland, ‘A Policing Service for the Future’ Implementing the Report of the Commission on the Future of Policing in Ireland, 2018.

The first two phases ‘Building Blocks’ and ‘Launching phase’ were to be completed between January-December 2019, the third ‘Scaling phase’ was planned for January 2020-June 2021 and the final ‘Consolidation phase’ was planned for July 2021-December 2022. However, as of March 2021, the first two phases have been completed. The third phase commenced in October 2020. See Dail Eireann Debate, Cian O’Callaghan, Parliamentary Question on Garda Reform, 2021.

67 Department of Justice, Minister McEntee publishes General Scheme of landmark Policing, Security and Community Safety Bill, 27 April 2021.68 See eg Policing Authority, Assessment of Policing Performance, 2020.69 The Policing Authority is an independent statutory body tasked with overseeing the performance of the Garda Síochána, in relation to policing

services in Ireland.70 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 6 May 2020, p. 3.71 Policing Authority, Reports, 13 May 2021.72 ICCL, Monitoring rights during the pandemic 4-10 April 2020, April 2020.73 Policing Authority Report, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, May 2020, p. 2; ICCL,

Monitoring rights during the pandemic 9-15 May 2020, May 2020.74 ICCL, Monitoring rights during the pandemic 9-15 May 2020, May 2020.75 Policing Authority Report, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, May 2020, p. 11.76 An Garda Síochána, Coronavirus (Covid-19), 2021.

3. Role of An Garda Síochána in the Covid-19 responseThis section presents an overview of the role of An Garda Síochána (AGS) in the State’s Covid-19 response and, in particular, in enforcing the emergency law and regulations. We examine three key areas: the response of AGS in light of the ongoing reform process; the introduction and exercise of expanded enforcement powers in relation to breaches of Covid-19-related regulations; and a number of concerning policing practices from a human rights perspective.

3.1 Reform and Community PolicingThe Irish Government began a policing reform process in 2019, following its endorsement of the Commission on the Future of Policing in Ireland’s (CFP) report and recommendations.65 The CFP report proposes a new framework for policing, security, and community safety and makes key recommendations relating to integrating human rights in policing and community-based policing. The implementation of some recommendations has been delayed due to Covid-19.66 However, in April 2021 the Government published the General Scheme of the Policing, Security and Community Safety Bill, which according to the Department of Justice was developed on the basis of the CFP recommendations.67 ICCL welcomes the Government’s commitment to implement the CFP recommendations and is preparing an in-depth analysis of the Bill.

Many of the CFP recommendations, particularly in relation to the proposed transformation of AGS to a human rights-based and community-based police service, are relevant when considering policing in the

context of Covid-19. Much of the policing response was welcomed, particularly where AGS played a role in supporting at-risk communities.68

However, ICCL is concerned about the expansion of powers accorded to AGS to enforce Covid-19 regulations, especially given the potential of over-policing, to disrupt the transition of AGS from a police force to a community-focused police service, as recommended by the CFP.

3.2 Enforcement powers AGS has played a central role in responding to the Covid-19 pandemic. This sub-section explores the enforcement powers accorded to AGS and their use. The Policing Authority69 is monitoring whether AGS are using Covid-19 enforcement powers “as appropriately and sparingly as possible.”70 To date, the Policing Authority has published thirteen reports examining policing performance in relation to Covid-19 regulations.71 ICCL welcomed this monitoring work and has engaged with the Policing Authority throughout the Covid-19 pandemic on human rights-related policing concerns.72 In May 2020, Policing Authority chairperson Bob Collins’ stated that “this is a health emergency. It is not a policing… or crime emergency”.73 For us, this demonstrated the need to end or at least significantly reduce the emergency enforcement powers conferred on AGS.74 Instead, these enforcement powers have significantly expanded.

AGS have taken a graduated approach in relation to the Covid-19 regulations, known as the four ‘Es’ approach of engage, explain, encourage and enforce.75 AGS use the first three Es in respect of non-penal restrictions in the regulations – those which do not carry a fine or prison sentence – while they use all four Es in respect of restrictions which carry criminal sanctions.76

http://policereform.ie/en/polref/pages/pb18000006

http://www.justice.ie/en/JELR/Pages/Commission_on%20the_Future_of-Policing_in_Ireland

https://www.oireachtas.ie/en/debates/question/2021-02-24/7/

https://www.gov.ie/en/press-release/74eb0-minister-mcentee-publishes-general-scheme-of-landmark-policing-security-and-community-safety-bill/

https://www.policingauthority.ie/assets/uploads/documents/Policing_Authority_Assessment_of_Policing_Performance_2020.pdf

https://www.policingauthority.ie/en/about-us/

https://www.policingauthority.ie/assets/uploads/documents/Policing_performance_by_the_Garda_S%C3%ADoch%C3%A1na_in_Relation_to_Covid-19_Regulations_-_6th_May_2020.pdf

https://www.policingauthority.ie/en/all-media/publications-category-results/policing-authority-publications






https://www.garda.ie/en/about-us/our-departments/office-of-corporate-communications/news-media/coronavirus-covid-19-.html


As outlined in section one of this report, the Health (Preservation and Protection and Other Emergency Measures in the Public Interest) Act 2020 inserted section 31A into the Health Act 1947 in March 2020. This section provides that the Minister for Health may make regulations for the purpose of preventing, limiting, minimising or slowing the spread of Covid-19. These may include restrictions on travel, the prohibition of events, different safeguards, and some restrictions can be classified as penal provisions.77 Additional legislation has also provided for enforcement measures.78

From 20 March until 8 April 2020, AGS only had recourse to the first 3 Es in respect of Covid-19 restrictions. ICCL welcomed the AGS community policing approach based on the first 3 Es, urging for it to continue when the regulations carrying criminal sanctions for breach of restrictions were introduced.79 ICCL noted that during this period, the Gardaí had “managed successfully without recourse to criminal sanctions, indicating perhaps that there is no need for these regulations.”80

(i) Introduction of enforcement powersThe Minister for Health published the first set of Covid-19 regulations on 8 April 2020, which granted the AGS powers to enforce compliance with Government restrictions on movement and events. The five powers under the relevant legislation are to:

• Direct a person to comply with the regulations81

77 Health Act 1947, s.31A.78 Criminal Justice (Enforcement Powers) (Covid-19) Act 2020; Health (Amendment) Act 2020; Health (Amendment) Act 2021.79 ICCL, Extraordinary police powers should not be used, 8 April 2020.80 ICCL, Extraordinary police powers should not be used, 8 April 2020.81 Health Act 1947, s. 32A(7).82 Health Act 1947, s. 31A(8).83 Health Act 1947, s. 31A(9).84 Health Act 1947, s. 31A(11).85 Health Act 1947, s. 31A(11) and associated regulations.86 ICCL, Monitoring rights during the pandemic 4-10 April 2020, April 2020.87 ICCL, Monitoring rights during the pandemic 9-15 May 2020, May 2020.

• Arrest without warrant for failure to comply with such a direction82

• Demand a person’s name and address83

• Arrest without warrant for failure to comply with the demand for name and address84

• Arrest without warrant for failure to comply with the regulations.85

A key action underpinning the pandemic response should be an ongoing human rights impact assessment. ICCL has repeatedly called for this, including in relation to the establishment and exercise of enforcement powers. In April 2020, ICCL called on the Government and AGS to “carry out a human rights audit before any new extension of the powers is announced. This audit should determine whether all measures meet the necessity and proportionality requirements to restrict fundamental human rights.”86 Unfortunately, despite repeated calls, no audit has taken place to date.

ICCL has repeatedly called for the removal of the extraordinary police powers.87 The nature of the expansion of police powers over a variety of areas, including inspection and enforcement, combined with poor communication on each set of new regulations and laws, has made it difficult for the public to follow what precise powers have been expanded. ICCL has summarised the main change in police powers below in relation to four areas: penal provisions, pubs, fixed penalty provisions, and dwelling event provisions.

"ICCL has repeatedly called for the removal of the extraordinary police powers. The nature of the expansion of police powers over a variety of areas, including inspection and enforcement, combined with poor communication on each set of new regulations and laws, has made it difficult for the public to follow what precise powers have been expanded."

https://www.iccl.ie/news/iccl-extraordinary-police-powers-should-not-be-used/

https://www.iccl.ie/news/iccl-extraordinary-police-powers-should-not-be-used/




As outlined in section one of this report, the Health (Preservation and Protection and Other Emergency Measures in the Public Interest) Act 2020 inserted section 31A into the Health Act 1947 in March 2020. This section provides that the Minister for Health may make regulations for the purpose of preventing, limiting, minimising or slowing the spread of Covid-19. These may include restrictions on travel, the prohibition of events, different safeguards, and some restrictions can be classified as penal provisions.77 Additional legislation has also provided for enforcement measures.78

From 20 March until 8 April 2020, AGS only had recourse to the first 3 Es in respect of Covid-19 restrictions. ICCL welcomed the AGS community policing approach based on the first 3 Es, urging for it to continue when the regulations carrying criminal sanctions for breach of restrictions were introduced.79 ICCL noted that during this period, the Gardaí had “managed successfully without recourse to criminal sanctions, indicating perhaps that there is no need for these regulations.”80

(i) Introduction of enforcement powersThe Minister for Health published the first set of Covid-19 regulations on 8 April 2020, which granted the AGS powers to enforce compliance with Government restrictions on movement and events. The five powers under the relevant legislation are to:

• Direct a person to comply with the regulations81

77 Health Act 1947, s.31A.78 Criminal Justice (Enforcement Powers) (Covid-19) Act 2020; Health (Amendment) Act 2020; Health (Amendment) Act 2021.79 ICCL, Extraordinary police powers should not be used, 8 April 2020.80 ICCL, Extraordinary police powers should not be used, 8 April 2020.81 Health Act 1947, s. 32A(7).82 Health Act 1947, s. 31A(8).83 Health Act 1947, s. 31A(9).84 Health Act 1947, s. 31A(11).85 Health Act 1947, s. 31A(11) and associated regulations.86 ICCL, Monitoring rights during the pandemic 4-10 April 2020, April 2020.87 ICCL, Monitoring rights during the pandemic 9-15 May 2020, May 2020.

• Arrest without warrant for failure to comply with such a direction82

• Demand a person’s name and address83

• Arrest without warrant for failure to comply with the demand for name and address84

• Arrest without warrant for failure to comply with the regulations.85

A key action underpinning the pandemic response should be an ongoing human rights impact assessment. ICCL has repeatedly called for this, including in relation to the establishment and exercise of enforcement powers. In April 2020, ICCL called on the Government and AGS to “carry out a human rights audit before any new extension of the powers is announced. This audit should determine whether all measures meet the necessity and proportionality requirements to restrict fundamental human rights.”86 Unfortunately, despite repeated calls, no audit has taken place to date.

ICCL has repeatedly called for the removal of the extraordinary police powers.87 The nature of the expansion of police powers over a variety of areas, including inspection and enforcement, combined with poor communication on each set of new regulations and laws, has made it difficult for the public to follow what precise powers have been expanded. ICCL has summarised the main change in police powers below in relation to four areas: penal provisions, pubs, fixed penalty provisions, and dwelling event provisions.

"ICCL has repeatedly called for the removal of the extraordinary police powers. The nature of the expansion of police powers over a variety of areas, including inspection and enforcement, combined with poor communication on each set of new regulations and laws, has made it difficult for the public to follow what precise powers have been expanded."


88 SI No. 121 of 2020, reg. 4.89 SI No. 181 of 2020, reg. 5.90 SI No. 234 of 2020, reg. 5.91 Health Act 1947, s.31A(6).92 Health Act 1947, s.31A(12).93 Health Act 1947, s.31A(12)(a).94 Health Act 1947, s.31A(12)(b).95 Criminal Justice (Enforcement Powers) (Covid-19) Act 2020, ss. 3, 4.96 Criminal Justice (Enforcement Powers) (Covid-19) Act 2020, s. 3.97 Criminal Justice (Enforcement Powers) (Covid-19) Act 2020, s. 4.98 Criminal Justice (Enforcement Powers) (Covid-19) Act 2020, s. 5.99 Health Act 1947, s. 31A(6C).100 SI No. 536 of 2020 (Health Act 1947 (Fixed Payment Notice and Dwelling Event Provisions) Covid-19 Regulations 2020).101 SI No. 536 of 2020 (Health Act 1947 (Fixed Payment Notice and Dwelling Event Provisions) Covid-19 Regulations 2020), Schedule 1.102 SI No. 562 of 2020 (Health Act 1947 (Fixed Payment Notice and Dwelling Event Provisions) Covid-19 (Amendment) Regulations 2020).103 SI No. 562 of 2020, reg. 2.104 SI No. 652 of 2020.105 SI No. 652 of 2020, reg. 2.106 SI No. 697 of 2020; SI No. 703 of 2020.107 SI No. 29 of 2021, reg. 4(A)(1).108 SI No. 30 of 2021.

Penal provisions

The regulations have introduced different penal provisions, such as for leaving your place of residence without reasonable excuse88, non-compliance with passenger locator form requirements for international passengers89, and organising events.90 The breach of a penal provision is a criminal offence.91 From 20 March 2020 to 25 October 2020, this was punishable by a fine of up to €2500 and/or up to six months imprisonment.92 The Health (Amendment) Act 2020 amended this to provide for graduated penalties depending on whether it is a person’s first offence (fine up to €1000 and/or up to 1 month imprisonment), second offence (fine up to €1500 and/or up to 3 months imprisonment), or third or subsequent offence (fine of up to €2500 and/or up to six months imprisonment).93 However, a court may impose the maximum penalty regardless of whether it is a person’s first or second offence if it determines that there were aggravating circumstances, such as the refusal to comply with directions of a Garda and the degree of danger to public health occasioned by the offence.94

Pubs and clubs

The Criminal Justice (Enforcement Powers) (Covid-19) Act 2020 introduced additional enforcement powers in respect of premises where intoxicating liquor is sold or supplied for consumption on the premises (pubs and clubs).95 This includes the power to enter and inspect a premises without a warrant,96 issue immediate closure orders for failure or refusal to comply with directions,97 and apply for emergency closure orders from the District Court.98

Fixed penalty provisions

The Health (Amendment) Act 2020 provides that the Minister for Health may make regulations prescribing penal provisions to be fixed penalty provisions.99 Regulations providing for fixed penalty provisions came into operation on 22 November 2020.100 Fixed penalty provisions were initially provided for the following offences: non-compliance with a request to wear a face covering on public transport (€80), leaving one’s place of residence without a reasonable excuse (€100), and organising an event for social or recreational reasons in a dwelling other than in specific circumstances (€500).101

These regulations changed on 30 November 2020102. The provision requiring individuals to not leave their place of residence was amended to not travel from one’s county of residence without reasonable excuse.103 Additional fixed penalty provisions came into operation on 18 December 2020.104 These included that a person shall not, without reasonable excuse, use or travel by a public service vehicle without wearing a face covering and that a worker in a relevant premises shall not, without reasonable excuse, prepare or service food or beverages for consumption on the premises without a face covering.105 The regulations were again amended on 23 and 30 December 2020 to correspond with the updated main regulations.106

An additional fixed penalty provision providing that a person shall not leave their place of residence to go to an airport or port for the purpose of leaving the State without reasonable excuse came into operation on 1 February 2021.107 This carried a fine of €500.108

http://www.irishstatutebook.ie/eli/2020/si/121/made/en/print












http://www.irishstatutebook.ie/eli/2021/si/30/made/en/pdf


The Government then announced its intention to increase the amount of fines from €500 to €2000 as there was a sense, expressed in the national media, that €500 was “not a sufficient disincentive to travel abroad.”109 However, section 31A of the Health Act 1947, amended by the Health (Amendment) Act 2020, provided that the maximum amount a Minister may set for a fixed payment notice was €500. In light of this, the Government passed new legislation, the Health (Amendment) Act 2021, in order to allow for higher fines: up to €4000 for the first offence, €4500 for the second offence, and €5000 for a third or subsequent offence. The current prohibition of travel to a port or airport without reasonable excuse, introduced on 10 May 2021, constitutes a fixed penalty provision, carrying a fine of up to €2000.110

Dwelling event provisions

The Health (Amendment) Act 2020 provides that the Minister for Health may make regulations making certain dwelling event provisions penal provisions.111 It provides for extensive powers for Gardaí to direct a person to immediately leave the place and vicinity if the Gardaí suspect, with reasonable cause, that the person intends to, are about to, or are attempting to, enter a dwelling in contravention of a dwelling event provision.112 Further, a Garda may direct the occupier of a dwelling to require and cause all persons attending the event to immediately leave if they suspect, with reasonable cause, that an event in contravention of a dwelling event provision is taking place.113 In order to carry out giving a direction, a Garda may wait at the main entrance of a dwelling and require the occupier to provide the member with

109 Tommy Meskill, Plans to increase international travel fine to €2000, RTE, 10 February 2021.110 SI No. 217 of 2021; SI No. 219 of 2021.111 Health Act 1947, S.31A(6)(D). 112 Health Act 1947, S. 31(D)(1).113 Health Act 1947, S. 31(D)(2).114 Health Act 1947, S. 31(D)(3).115 SI No. 536 of 2020 (Health Act 1947 (Fixed Payment Notice and Dwelling Event Provisions) Covid-19 Regulations 2020).116 ICCL, Monitoring rights during the pandemic 22-28 August 2020, 2020.117 ICCL, Monitoring rights during the pandemic 22-28 August 2020, 2020.118 ICCL, Monitoring rights during the pandemic, 22-28 August 2020, 2020.119 ICCL, Garda powers are unworkable and must be ended, 4 June 2020.

their name.114 It is an offence to fail to comply with a direction given by a Garda, without reasonable excuse, which is punishable by a fine of up to €1000 and/or imprisonment of up to one month. Regulations providing for dwelling event provisions came into operation on 22 November 2020.115

We note once again our firm and ongoing opposition to all of these provisions, and we have repeatedly called on Government to heed advice from behavioural scientists that say communication and encouragement lead to better results than punishment.

In August 2020, there were media reports that the Government intended to confer additional powers to AGS to enforce public health guidelines, including by potentially entering a dwelling house without consent.116 ICCL successfully opposed the introduction of such legislative measures as it would have had far-reaching implications for different human rights, including the right to respect for family and private life.117 This legislation was ultimately not introduced.

The proposal of further legislative powers for AGS demonstrated that the Government’s response to an increase in Covid-19 cases relied on a criminal justice strategy. However, as ICCL pointed out at the time, the surge in cases was linked to outbreaks in congregated settings and we consider the priority should have been to take targeted action to address this issue.118 ICCL has repeatedly called for the enforcement of public health advice by consent and cooperation, rather than by criminal law. We advocate a return to policing by consent, which we consider was effective at the onset of the pandemic.119

"We note once again our firm and ongoing opposition to all of these provisions, and we have repeatedly called on Government to heed advice from behavioural scientists that say communication and encouragement lead to better results than punishment."

https://www.rte.ie/news/coronavirus/2021/0210/1196272-travel-fines/

https://webcache.googleusercontent.com/search?q=cache:nrZaE511HaMJ:https://assets.gov.ie/134499/bb2a7e1a-4170-446d-b09d-9c024dff8d0c.pdf+&cd=1&hl=en&ct=clnk&gl=ie

https://webcache.googleusercontent.com/search?q=cache:5RzfQIu8oVsJ:https://assets.gov.ie/134501/1ae7930e-c815-45b7-92d1-0e7071d0b653.pdf+&cd=1&hl=en&ct=clnk&gl=ie



https://www.iccl.ie/news/garda-covid-powers-are-unworkable-and-must-be-ended/


The Government then announced its intention to increase the amount of fines from €500 to €2000 as there was a sense, expressed in the national media, that €500 was “not a sufficient disincentive to travel abroad.”109 However, section 31A of the Health Act 1947, amended by the Health (Amendment) Act 2020, provided that the maximum amount a Minister may set for a fixed payment notice was €500. In light of this, the Government passed new legislation, the Health (Amendment) Act 2021, in order to allow for higher fines: up to €4000 for the first offence, €4500 for the second offence, and €5000 for a third or subsequent offence. The current prohibition of travel to a port or airport without reasonable excuse, introduced on 10 May 2021, constitutes a fixed penalty provision, carrying a fine of up to €2000.110

Dwelling event provisions

The Health (Amendment) Act 2020 provides that the Minister for Health may make regulations making certain dwelling event provisions penal provisions.111 It provides for extensive powers for Gardaí to direct a person to immediately leave the place and vicinity if the Gardaí suspect, with reasonable cause, that the person intends to, are about to, or are attempting to, enter a dwelling in contravention of a dwelling event provision.112 Further, a Garda may direct the occupier of a dwelling to require and cause all persons attending the event to immediately leave if they suspect, with reasonable cause, that an event in contravention of a dwelling event provision is taking place.113 In order to carry out giving a direction, a Garda may wait at the main entrance of a dwelling and require the occupier to provide the member with

109 Tommy Meskill, Plans to increase international travel fine to €2000, RTE, 10 February 2021.110 SI No. 217 of 2021; SI No. 219 of 2021.111 Health Act 1947, S.31A(6)(D). 112 Health Act 1947, S. 31(D)(1).113 Health Act 1947, S. 31(D)(2).114 Health Act 1947, S. 31(D)(3).115 SI No. 536 of 2020 (Health Act 1947 (Fixed Payment Notice and Dwelling Event Provisions) Covid-19 Regulations 2020).116 ICCL, Monitoring rights during the pandemic 22-28 August 2020, 2020.117 ICCL, Monitoring rights during the pandemic 22-28 August 2020, 2020.118 ICCL, Monitoring rights during the pandemic, 22-28 August 2020, 2020.119 ICCL, Garda powers are unworkable and must be ended, 4 June 2020.

their name.114 It is an offence to fail to comply with a direction given by a Garda, without reasonable excuse, which is punishable by a fine of up to €1000 and/or imprisonment of up to one month. Regulations providing for dwelling event provisions came into operation on 22 November 2020.115

We note once again our firm and ongoing opposition to all of these provisions, and we have repeatedly called on Government to heed advice from behavioural scientists that say communication and encouragement lead to better results than punishment.

In August 2020, there were media reports that the Government intended to confer additional powers to AGS to enforce public health guidelines, including by potentially entering a dwelling house without consent.116 ICCL successfully opposed the introduction of such legislative measures as it would have had far-reaching implications for different human rights, including the right to respect for family and private life.117 This legislation was ultimately not introduced.

The proposal of further legislative powers for AGS demonstrated that the Government’s response to an increase in Covid-19 cases relied on a criminal justice strategy. However, as ICCL pointed out at the time, the surge in cases was linked to outbreaks in congregated settings and we consider the priority should have been to take targeted action to address this issue.118 ICCL has repeatedly called for the enforcement of public health advice by consent and cooperation, rather than by criminal law. We advocate a return to policing by consent, which we consider was effective at the onset of the pandemic.119

"We note once again our firm and ongoing opposition to all of these provisions, and we have repeatedly called on Government to heed advice from behavioural scientists that say communication and encouragement lead to better results than punishment."


120 Mixed Garda Reaction to Fines Plan for Covid-19 Breaches, Irish Examiner, 13 October 2020121 Minutes of Meeting of Policing Authority, 30 September 2020.122 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 19 April 2021, p. 6.123 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 19 April 2021, p. 7.

(ii) Exercise of enforcement powers and coercive practicesThe Health (Amendment) Act 2021 provided for fixed penalty notices (fines) for breaches of many of the restrictions. The Act initially provided for fines of up to €500 but was later amended to allow for on the spot fines of up to €2000. This significantly changed the enforcement landscape given that prior to this Act a person could only be punished for breaching the Covid-19 restrictions after a decision by the DPP to pursue the case to a criminal trial. ICCL questioned the necessity or effectiveness of introducing on the spot fines. We also noted the opposition to the introduction of fines from the Garda Commissioner who raised civil liberty concerns related to the introduction of fines and defined such an approach as “authoritarian and draconian”.120 The Commissioner also emphasised to the Policing Authority in September 2020 “the importance of maintaining a positive relationship with the public and of adhering to the approach of engaging, educating and encouraging, with enforcement as a last resort.”121 The introduction and imposition of fines by AGS is explored in more detail in the section below on policing in a pandemic.

After significant campaigning by ICCL in August 2020,

proposals to allow Gardaí to enter homes without the consent of the owner in order to break up parties were ultimately dropped. These raised significant concerns about privacy and family life and the constitutional protection of the home.

ICCL expressed particular concern at the designation of the ‘dwelling event provisions’ as penal provisions by the Health Amendment Act. This Act empowered Gardaí to issue directions to people they believed were on their way to a house party to leave the area. Gardai are empowered to stand at a door of a home if they believe a gathering is taking place within the home and direct the occupier to cause everyone attending the event to leave. Failure to comply with a direction of a Garda, without reasonable excuse, is a criminal offence punishable by a fine of up to €1,000 and/or imprisonment of up to one month. ICCL expressed concern that policing at or around dwellings may constitute a disproportionate interference with the constitutional protections of the home.

AGS has regularly reported the amount of times enforcement powers were used to the Policing Authority, for example see Figure 1. In 2021, as of 19 April 2021, the emergency powers were used in 602 incidents.122

FIGURE 1: Number of times powers under the Covid Regulations (excluding fines) were used per month from 8 April 2020 to 10 April 2021, as reported by the Policing Authority123

200

0

100

50

150

Oct-20Aug-20Jun-20April 2020 (part) April 2021 (part)Dec-20 Feb-21

No. of times - OtherNo. of times - Licensed PremisesNo. of times - Non-Essential RetailNo. of times - International travel


https://www.policingauthority.ie/assets/uploads/documents/2020_79_September_30_2020.pdf





2021 saw a sharp increase in the use of enforcement powers. For example, in January 2021, there were 207 incidents where non-fine related enforcement powers were used. This is higher than the previous peak in April 2020, when the enforcement powers were used 193 times.124 In addition, a huge number of fines - 20,242 as of 15 April 2021 - have been issued in 2021.125

This increase of enforcement reflects the view of AGS that “for certain offences, a point has been reached where the first three “E’s” are no longer considered as effective in preventing certain behaviours which present a public health risk.”126 ICCL would question this view. We have expressed concern that the shift in emphasis to punishment by Government can be seen as an attempt to deflect from the real issues that need to be tackled and are perhaps more of a sign of a political system running out of ideas and seeking targets to blame.127

We also note the Policing Authority’s concern that “Greater levels of enforcement have the capacity to change the nature of the relationship between the Garda Síochána and the public which up to now has been very positive.”128

Since their introduction, ICCL has called for fines to be issued as a last resort and sparingly. As we highlighted in September 2020, “fines are not only expensive to administer but are also discriminatory as they disproportionately penalise people who cannot afford them.”129 A key problem with this power is the degree to which AGS is required to exercise discretion. The list of ‘reasonable excuses’ in each set of regulations is non-exhaustive, affording discretion to Gardaí in assessing whether an excuse can be considered ‘reasonable’. ICCL considers that this affords overly wide discretion to individual Gardaí and potentially contravenes the requirement of certainty and foreseeability in criminal law.

As noted in the first section of this report, in our view, the confusion around which rules people are legally required to follow and which rules people are advised

to follow has led to inconsistent policing. At the same time, we recognise that there has been a lack of clarity around the restrictions throughout the Government response, which makes enforcing them more difficult. Of particular note is the application of a 5km (earlier 2km) limit to the pursuit of exercise. This was generally understood as applying to all activity but in fact there was no geographical limit to obtaining essential goods and services. As the Policing Authority noted “the changing character of the regulatory framework, the wide set of exemptions and the sometimes subtle changes can mean that there are comparatively few who have a comprehensive sense of what is lawful and what is precluded.”130

ICCL also expressed concern about the removal of a key safeguard when fixed penalty notices were introduced. When punishment required prosecution, there was a public interest test applied to the decision to prosecute as applied by the DPP. Fixed penalty notices removed this requirement of the public interest test by the DPP and appears to have led to a much wider punishment and enforcement policy, as can be seen in the widespread use of fines since their introduction.

Since the introduction of fines, ICCL has consistently advocated for a policy of enforcement based on clear communication, positive encouragement, and the provision of supports rather than fines.131 The risk of inconsistent policing and over policing of certain populations has been and continues to be high in Covid-19 policing and is borne out by the fact that up to the 15 April 2021, the majority of fines have been issued to males (75%) and those aged 18 to 25 (53%).132

3.3 Policing practices of concern from a human rights perspectiveICCL raised concerns about a number of specific policing practices during the Covid-19 response from a human rights perspective. These include the introduction and use of spit hoods and reports of inconsistent policing.

124 Operation Navigation is the policing operation on licensed premises which are in breach of Covid-19 regulations and Operation Treoraim is the policing operation on retail premises which are trading non-essential items in breach of Covid-19 regulations. Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 19 April 2021, p. 7.

125 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 19 April 2021, p. 3.126 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 18 February 2021, p. 10.127 Liam Herrick, Covid Strategy Needs More Carrot and Less Stick, Irish Examiner, 16 February 2021.128 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 18 February 2021, p. 10.129 ICCL, Monitoring rights during the pandemic, 3-9 October 2020, 2020.130 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 19 April 2021, p. i.131 ICCL, Monitoring rights during the pandemic, 2021.132 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 15 March 2021, p. 4; Policing

Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 19 April 2021, p. 5.




https://www.policingauthority.ie/assets/uploads/documents/Report_on_Policing_Performance_by_the_Garda_S%C3%ADoch%C3%A1na_during_COVID-19_-_18_February_2021.pdf

https://www.irishexaminer.com/opinion/commentanalysis/arid-40227743.html

https://www.policingauthority.ie/assets/uploads/documents/Report_on_Policing_Performance_by_the_Garda_S%C3%ADoch%C3%A1na_during_COVID-19_-_18_February_2021.pdf

https://www.iccl.ie/wp-content/uploads/2020/10/Update-30.pdf


2021 saw a sharp increase in the use of enforcement powers. For example, in January 2021, there were 207 incidents where non-fine related enforcement powers were used. This is higher than the previous peak in April 2020, when the enforcement powers were used 193 times.124 In addition, a huge number of fines - 20,242 as of 15 April 2021 - have been issued in 2021.125

This increase of enforcement reflects the view of AGS that “for certain offences, a point has been reached where the first three “E’s” are no longer considered as effective in preventing certain behaviours which present a public health risk.”126 ICCL would question this view. We have expressed concern that the shift in emphasis to punishment by Government can be seen as an attempt to deflect from the real issues that need to be tackled and are perhaps more of a sign of a political system running out of ideas and seeking targets to blame.127

We also note the Policing Authority’s concern that “Greater levels of enforcement have the capacity to change the nature of the relationship between the Garda Síochána and the public which up to now has been very positive.”128

Since their introduction, ICCL has called for fines to be issued as a last resort and sparingly. As we highlighted in September 2020, “fines are not only expensive to administer but are also discriminatory as they disproportionately penalise people who cannot afford them.”129 A key problem with this power is the degree to which AGS is required to exercise discretion. The list of ‘reasonable excuses’ in each set of regulations is non-exhaustive, affording discretion to Gardaí in assessing whether an excuse can be considered ‘reasonable’. ICCL considers that this affords overly wide discretion to individual Gardaí and potentially contravenes the requirement of certainty and foreseeability in criminal law.

As noted in the first section of this report, in our view, the confusion around which rules people are legally required to follow and which rules people are advised

to follow has led to inconsistent policing. At the same time, we recognise that there has been a lack of clarity around the restrictions throughout the Government response, which makes enforcing them more difficult. Of particular note is the application of a 5km (earlier 2km) limit to the pursuit of exercise. This was generally understood as applying to all activity but in fact there was no geographical limit to obtaining essential goods and services. As the Policing Authority noted “the changing character of the regulatory framework, the wide set of exemptions and the sometimes subtle changes can mean that there are comparatively few who have a comprehensive sense of what is lawful and what is precluded.”130

ICCL also expressed concern about the removal of a key safeguard when fixed penalty notices were introduced. When punishment required prosecution, there was a public interest test applied to the decision to prosecute as applied by the DPP. Fixed penalty notices removed this requirement of the public interest test by the DPP and appears to have led to a much wider punishment and enforcement policy, as can be seen in the widespread use of fines since their introduction.

Since the introduction of fines, ICCL has consistently advocated for a policy of enforcement based on clear communication, positive encouragement, and the provision of supports rather than fines.131 The risk of inconsistent policing and over policing of certain populations has been and continues to be high in Covid-19 policing and is borne out by the fact that up to the 15 April 2021, the majority of fines have been issued to males (75%) and those aged 18 to 25 (53%).132

3.3 Policing practices of concern from a human rights perspectiveICCL raised concerns about a number of specific policing practices during the Covid-19 response from a human rights perspective. These include the introduction and use of spit hoods and reports of inconsistent policing.

124 Operation Navigation is the policing operation on licensed premises which are in breach of Covid-19 regulations and Operation Treoraim is the policing operation on retail premises which are trading non-essential items in breach of Covid-19 regulations. Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 19 April 2021, p. 7.

125 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 19 April 2021, p. 3.126 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 18 February 2021, p. 10.127 Liam Herrick, Covid Strategy Needs More Carrot and Less Stick, Irish Examiner, 16 February 2021.128 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 18 February 2021, p. 10.129 ICCL, Monitoring rights during the pandemic, 3-9 October 2020, 2020.130 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 19 April 2021, p. i.131 ICCL, Monitoring rights during the pandemic, 2021.132 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 15 March 2021, p. 4; Policing

Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 19 April 2021, p. 5.


(i) Use of spit hoods133

AGS ordered 16,000 spit hoods in March 2020 for use by members of the AGS against individuals during policing operations.134 Spit hoods are full mesh hoods used to cover the entire head and neck of a person. They were ostensibly introduced to prevent transmission of disease, though there is no good evidence that they do so.135 In fact, AGS are using the same model of spit hoods as the PSNI, which the manufacturer described as “not an effective means to prevent Covid-19.”136

ICCL immediately raised concerns about the human rights impact of the use of spit hoods in a letter sent to the Garda Commissioner in March 2020. In particular we identified the risk that their use could constitute inhuman or degrading treatment or punishment.137 In a second letter to the Garda Commissioner in April 2020, we cited the risk of serious injuries and repeated our concern that their use may constitute inhuman or degrading treatment.138 ICCL has continued to reiterate its opposition to spit hoods,139 including through further letters to the Garda Commissioner,140 other actors,141 and press releases calling for an end to their use, including with the Children’s Rights Alliance.142

AGS first deployed a spit hood against a person on 13 April 2020. In April 2020, the Policing Authority

highlighted a lack of clarity on their use, particularly in relation children aged 12 and over.143 Since April 2020, AGS has provided detailed reporting to the Policing Authority on each case where a spit hood is used.144 As of April 2021, spit hoods had been used in 134 incidents.145

AGS commenced an evaluation of the use and management of spit hoods in September 2020. ICCL made a submission to this evaluation, highlighting its opposition to the use of spit hoods at any time and urging AGS to discontinue their use.146 The status of this evaluation has not been distributed publicly as of May 2021. We have repeatedly called for this review to be made public. The Policing Authority reported in April 2021 that the evaluation’s findings did not clearly State whether spit hoods had been effective or if they should be retained.147

There are key concerns in relation to the disproportionate use of spit hoods on particular groups and on vulnerable individuals. For example, in March 2020, Daniel Prude, a Black man with mental health issues, died after a spit hood was used on him in the USA.148

In Ireland, in the majority of cases, spit hoods have been used on males between the ages of 18-44.149 There have been cases where a spit hood has been used on those under 18 and a significant number of

133 ICCL adopts the term spit hood as it reflects that the device is a restraining device and believes that the use of the term “anti-spit guard” is misleading as it gives the false impression that a spit hood is a piece of PPE equipment. See, ICCL, Monitoring rights during the pandemic, 29 August-4 September 2020, 2020.

134 Stephen McDermott, Gardai to use ‘spit hoods’ on suspects to protect force from coronavirus, The Journal, 26 March 2020; Conor Gallagher, Coronavirus: Gardai to receive controversial ‘spit hoods’ during crisis, The Irish Times, 25 March 2020.

135 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 11 September 2020, p. 8. The Policing Authority highlighted how AGS are using the same model of spit hoods as the PSNI, which the manufacturer described as “not an effective means to prevent Covid-19.” The Policing Authority contacted the distributors directly, who stated that they “have not been tested for their capacity to prevent airborne or respiratory droplets which spread Covid-19.”

136 Ibid 137 ICCL, Letter to the Garda Commissioner re Spit Hoods on 30 March 2020, 2020.138 ICCL, Letter to the Garda Commissioner on 27 April 2020, 2020.139 ICCL, Monitoring rights during the pandemic, 9-15 May 2020, 2020.140 ICCL, Monitoring rights during the pandemic, 20-26 June 2020, 2020.141 ICCL, Monitoring rights during the pandemic, 22-28 August 2020, 2020.142 ICCL, Monitoring rights during the pandemic, 12-18 September 2020, 2020.143 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 20 April144 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 6 May 2020, p. 11.145 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 19 April 2021, p. 16.146 ICCL, ICCL Submission to AGS re Spit Hoods, 26 August 2020, p.1.147 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 19 April 2021, p. 16.148 Associated Press, Daniel Prude: police officers suspended after death of Black man in spit hood, The Guardian, 3 September 2020.149 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 25 June 2020, p. 15.

"ICCL is completely opposed to the use of spit hoods at any time and urges An Garda Síochána to discontinue their use."



https://www.thejournal.ie/article.php?id=5057994

https://www.irishtimes.com/news/crime-and-law/coronavirus-garda%C3%AD-to-receive-controversial-spit-hoods-during-crisis-1.4212183

https://www.irishtimes.com/news/crime-and-law/coronavirus-garda%C3%AD-to-receive-controversial-spit-hoods-during-crisis-1.4212183

https://www.policingauthority.ie/assets/uploads/documents/Policing_Performance_by_the_Garda_S%C3%ADoch%C3%A1na_in_relation_to_the_Covid-19_Regulations_-_11092020.pdf

https://www.iccl.ie/wp-content/uploads/2020/03/ICCL-letter-to-Garda-Commissioner-re-spit-hoods.pdf

https://www.iccl.ie/wp-content/uploads/2020/04/ICCL-Letter-to-Garda-Commissioner-27.04.20.pdf




https://www.iccl.ie/wp-content/uploads/2020/10/Update-27.pdf

https://www.policingauthority.ie/assets/uploads/documents/Report_on_the_policing_performance_by_the_Garda_S%C3%ADoch%C3%A1na_in_relation_to_the_Health_Act_1947_%28Section_31_%E2%80%93_Temporary_Restrictions%29_%28Covid-19%29_Regulations_2020_%28%E2%80%98Covid-19_Regulations%E2%80%9D%29.pdf



https://www.iccl.ie/wp-content/uploads/2020/08/ICCL-submission-to-An-Garda-Siochana-on-spit-hoods.pdf


https://www.theguardian.com/us-news/2020/sep/03/daniel-prude-spit-hood-suffocation-death-black-man-police

https://www.policingauthority.ie/assets/uploads/documents/2020_06_25_Report_to_the_Minister_final.pdf


uses on people where there were signs of a mental health issue.150 In both these instances, one case is one too many. The Policing Authority has raised concerns about the reporting of the use of spit hoods, as the possibility of learning difficulties, medical assistance, and length of time the hood remained in place were not always specified.151

ICCL is completely opposed to the use of spit hoods at any time and urges AGS to discontinue their use. Hooding has long been considered by human rights bodies as a form of cruel, inhuman and degrading treatment or punishment, and, when other factors are present such as sensory deprivation are present, a form of torture. ICCL is concerned that spit hoods are being used without any sound evidential base that they are necessary, effective or proportionate to the stated aims outlined by police forces here and in other jurisdictions.

The function of police is to protect people. AGS has a statutory obligation to ensure all of its policing practices and policies conform with human rights law and policies.152 In this context, any new kit should be subject to a human rights assessment before it is rolled out. If it does not meet human rights standards, it should not be introduced.

(ii) Need for further data on policingThe Policing Authority has highlighted the need for further data to examine the reach and impact of the policing response, including the use of enforcement powers. AGS has not provided breakdowns of which of the specific enforcement powers was used in a given incident.153 The Policing Authority has consistently requested this information but to date it has not been provided.154 They noted their “concern in relation to an inability of the Garda Síochána to proactively anticipate and communicate why certain data and information will be needed to transparently inform good stewardship, governance and accountability. It also suggests that there may be a gap in the planning for operations through a human

150 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 11 September 2020, p. 8; Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 9 October 2020, p.8; Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 15 March 2021, pp. 14-15.

151 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 25 June 2020, p. 15.152 Garda Síochána Act 2005, s. 7; Irish Human Rights and Equality Commission Act 2014, s. 42; European Convention on Human Rights Act 2003, s. 3.153 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 20 May 2020, p. 13154 See e.g. Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 20 May 2020, p. 13.155 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 20 May 2020, pp. 13, 14.156 ICCL, Letter to Garda Commissioner, 27 April 2020.157 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 6 May 2020, p. 9.158 IHREC, Ireland’s Emergency Powers during the Covid-19 Pandemic, 2021, p. ix.159 UN Committee on the Elimination of Racial Discrimination, Concluding observations on the combined fifth to ninth reports of Ireland, 23 January

2020, CERD/C/IRL/CO/5-9, para. 15.

rights lens from the outset.”155 From the outset of the pandemic, ICCL has also requested information on the policing of the Covid-19 response and the use of the different enforcement powers and recommended that disaggregated data must be collected and published.156

There is also a need for further data about the impact of the policing response on different groups, in particular the need for information regarding policing of different ethnic groups.157 IHREC and the Policing Authority have previously recommended that the Garda Commissioner take steps to ensure that disaggregated data is collected on the exercise of all enforcement powers on the basis of prohibited grounds of discrimination under the Equal Status Acts 2000-2015, which includes race.158 The Policing Authority has advocated for the recording of ethnicity of those who have interactions with the police, including in relation to the use of spit hoods. However, as of May 2021, this information has not been recorded and shared publicly.

Prior to the Covid-19 pandemic, there were reports of the over-policing of certain groups in Ireland. For example, in 2019, the UN Committee on the Elimination of Racial Discrimination highlighted its concerns “about the reportedly high incidence of racial profiling by the Irish police (Garda) targeted at people of African descent, Travellers and Roma, and the disproportionately high representation of these ethnic minority groups in the prison system.”159 The lack of disaggregated data on the use of Covid-19 related enforcement powers makes it extremely difficult to assess whether they have been used proportionately or consistently.

ICCL has raised other concerns about worrying practices by members of AGS. In the first months of the pandemic response, we received complaints from members of the public about invasive stop and searches beyond the new powers, including searches of shopping bags; we received complaints that individuals were being asked for ID with no legal basis

https://www.policingauthority.ie/assets/uploads/documents/Policing_Performance_by_the_Garda_S%C3%ADoch%C3%A1na_in_relation_to_the_Covid-19_Regulations_-_11092020.pdf

https://www.policingauthority.ie/assets/uploads/documents/Report_on_Policing_Performance_by_the_Garda_S%C3%ADoch%C3%A1na_in_Relation_to_COVID-19_Regulations_%E2%80%93_9_Oct_2020.pdf

https://www.policingauthority.ie/assets/uploads/documents/2021_03_15_Final_Report_12_to_the_Minister.pdf


https://www.policingauthority.ie/assets/uploads/documents/Report_on_the_Policing_Performance_by_the_Garda_S%C3%ADoch%C3%A1na_in_relation_to_Covid-19_regulations_20_May_2020.pdf



https://www.iccl.ie/iccl-letter-to-garda-commissioner-27-04-20/



https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CERD/C/IRL/CO/5-9&Lang=En


uses on people where there were signs of a mental health issue.150 In both these instances, one case is one too many. The Policing Authority has raised concerns about the reporting of the use of spit hoods, as the possibility of learning difficulties, medical assistance, and length of time the hood remained in place were not always specified.151

ICCL is completely opposed to the use of spit hoods at any time and urges AGS to discontinue their use. Hooding has long been considered by human rights bodies as a form of cruel, inhuman and degrading treatment or punishment, and, when other factors are present such as sensory deprivation are present, a form of torture. ICCL is concerned that spit hoods are being used without any sound evidential base that they are necessary, effective or proportionate to the stated aims outlined by police forces here and in other jurisdictions.

The function of police is to protect people. AGS has a statutory obligation to ensure all of its policing practices and policies conform with human rights law and policies.152 In this context, any new kit should be subject to a human rights assessment before it is rolled out. If it does not meet human rights standards, it should not be introduced.

(ii) Need for further data on policingThe Policing Authority has highlighted the need for further data to examine the reach and impact of the policing response, including the use of enforcement powers. AGS has not provided breakdowns of which of the specific enforcement powers was used in a given incident.153 The Policing Authority has consistently requested this information but to date it has not been provided.154 They noted their “concern in relation to an inability of the Garda Síochána to proactively anticipate and communicate why certain data and information will be needed to transparently inform good stewardship, governance and accountability. It also suggests that there may be a gap in the planning for operations through a human

150 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 11 September 2020, p. 8; Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 9 October 2020, p.8; Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 15 March 2021, pp. 14-15.

151 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 25 June 2020, p. 15.152 Garda Síochána Act 2005, s. 7; Irish Human Rights and Equality Commission Act 2014, s. 42; European Convention on Human Rights Act 2003, s. 3.153 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 20 May 2020, p. 13154 See e.g. Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 20 May 2020, p. 13.155 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 20 May 2020, pp. 13, 14.156 ICCL, Letter to Garda Commissioner, 27 April 2020.157 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 6 May 2020, p. 9.158 IHREC, Ireland’s Emergency Powers during the Covid-19 Pandemic, 2021, p. ix.159 UN Committee on the Elimination of Racial Discrimination, Concluding observations on the combined fifth to ninth reports of Ireland, 23 January

2020, CERD/C/IRL/CO/5-9, para. 15.

rights lens from the outset.”155 From the outset of the pandemic, ICCL has also requested information on the policing of the Covid-19 response and the use of the different enforcement powers and recommended that disaggregated data must be collected and published.156

There is also a need for further data about the impact of the policing response on different groups, in particular the need for information regarding policing of different ethnic groups.157 IHREC and the Policing Authority have previously recommended that the Garda Commissioner take steps to ensure that disaggregated data is collected on the exercise of all enforcement powers on the basis of prohibited grounds of discrimination under the Equal Status Acts 2000-2015, which includes race.158 The Policing Authority has advocated for the recording of ethnicity of those who have interactions with the police, including in relation to the use of spit hoods. However, as of May 2021, this information has not been recorded and shared publicly.

Prior to the Covid-19 pandemic, there were reports of the over-policing of certain groups in Ireland. For example, in 2019, the UN Committee on the Elimination of Racial Discrimination highlighted its concerns “about the reportedly high incidence of racial profiling by the Irish police (Garda) targeted at people of African descent, Travellers and Roma, and the disproportionately high representation of these ethnic minority groups in the prison system.”159 The lack of disaggregated data on the use of Covid-19 related enforcement powers makes it extremely difficult to assess whether they have been used proportionately or consistently.

ICCL has raised other concerns about worrying practices by members of AGS. In the first months of the pandemic response, we received complaints from members of the public about invasive stop and searches beyond the new powers, including searches of shopping bags; we received complaints that individuals were being asked for ID with no legal basis


and we received reports from concerned citizens about the deployment of armed Gardaí at Covid checkpoints. ICCL wrote to the Garda Commissioner highlighting these concerns and requesting further information on the use of these enforcement measures in April 2020 but we did not receive detailed data in response.160

In June 2020, the Policing Authority highlighted that for children and young people, policing during Covid-19 is experienced as an “instrument of control rather than an instrument of care.”161 More recently, available data indicates that young men are the main recipients of fixed penalty notices which raises underlying concerns about inconsistency in policing.

160 ICCL, Letter to Garda Commissioner, 27 April 2020, 2020.161 Policing Authority, Report on the Policing Performance by the Garda Siochana in relation to Covid-19 regulations, 25 June 2020, p. 11.

3.4 Recommendations

FOR AGS:

1. Prioritise a community-based policing approach to enforcing Emergency Regulations and only use coercive measures, such as issuing fines or referral to the DPP, as a last resort. Apply a high threshold to non-compliance such as flagrant, repeated breaches of the penal provisions within the Regulations.

2. Immediately end the use of spit hoods, which potentially violate the absolute right not to be tortured or subjected to inhuman or degrading treatment or punishment.

3. Record the use of enforcement powers and publish disaggregated data on all policing encounters in the context of enforcing the Emergency Regulations.

4. Publish detailed guidelines on how it is approaching all policing operations related to enforcing the Emergency Regulations, including inspections, checkpoints, issuing fines and referrals to the DPP.

https://www.iccl.ie/wp-content/uploads/2020/04/ICCL-Letter-to-Garda-Commissioner-27.04.20.pdf




The Irish Covid-19 Response II: Impact on RightsThis part describes the impact of the Irish Covid-19 response on different human rights. As noted in the introduction, this is not a comprehensive analysis of the human rights issues raised by the Covid-19 response and restrictions. Instead, it focuses on key rights and issues that ICCL has worked on throughout the Covid-19 response, including the right to protest, the right to freedom of assembly and association, the right to liberty and free movement, and the right to privacy and data protection.

SECTION 2

The Irish Covid-19 Response II: Impact on RightsThis part describes the impact of the Irish Covid-19 response on different human rights. As noted in the introduction, this is not a comprehensive analysis of the human rights issues raised by the Covid-19 response and restrictions. Instead, it focuses on key rights and issues that ICCL has worked on throughout the Covid-19 response, including the right to protest, the right to freedom of assembly and association, the right to liberty and free movement, and the right to privacy and data protection.

SECTION 2


IMPACT OF THE COVID-19 RESPONSE ON

THE RIGHT TO PROTEST

4




IMPACT OF THE COVID-19 RESPONSE ON

THE RIGHT TO PROTEST

4




4. Impact of Covid-19 response on the right to protest4.1 Legal framework – Right to protestA particular focus of ICCL advocacy over the past year has been the right to protest, given its fundamental importance to democracy, including in emergencies. The pandemic and the Government’s response have seen ordinary lives impacted in a range of ways: people have lost jobs, sometimes with little or no notice; families have been separated and bereaved; and social events and occasions that give meaning to our lives have been highly restricted and, at times, banned.

In a democracy, people have the right to express their views, peacefully protest against decisions, and gather together in public to do so. This is fundamental to the freedoms that lie at the heart of democracy. Numerous human rights bodies have confirmed that States have a duty to facilitate protest, as well as the importance of this right to a functioning, democratic society.162 The UN Special Rapporteur on Freedom of Assembly and Association has noted that:

“The right to freedom of peaceful assembly is an essential tool through which individuals and groups can make known their views to those governing them, in order to shape public policies and decisions affecting society as a whole. It provides those in Government with a barometer that can assist them to calibrate and adjust their policies and decisions.”163

The right to protest is protected by the Constitution, the ECHR, the Charter of Fundamental Rights of the European Union (ECFR) and the ICCPR through the rights to freedom of assembly, freedom of expression and freedom of association.164 Other

rights that are relevant to protest include the right to non-discrimination, the right to freedom of thought, conscience and belief and, when force is used to suppress protest, the right to life and the right not to be subjected to ill treatment. Where protesters are subject to police surveillance, the right to privacy also takes on particular importance.

4.2 Impact of the restrictions on the right to protestThese rights can be limited in a proportionate manner to protect public health. ICCL recognised that large gatherings of people during a pandemic placed public health at risk and restrictions on large protests were necessary. However, given the fundamental importance of the right, ICCL consistently called on the Government to include small, safe protest as a reasonable excuse in the Emergency Health regulations with clear guidelines on how people could exercise their right to protest in a pandemic-safe manner.165 Despite some support for this proposal expressed by senior Government ministers in meetings with ICCL, protest was not included as an exception to the general restrictions on events at any level.

This is of concern not just because of the importance of respecting the right but also because of the inconsistent policing of protests caused by the lack of clarity on what was permissible. The absence of a clear, publicly available AGS policy on policing protest during the pandemic was noteworthy and likely hindered a consistent approach.

It is likely that the apparent blanket ban on protest at times during the past fourteen months was a disproportionate interference with the right to protest. Constitutional courts in other jurisdictions subject to the ECHR, such as Germany,166 found that a blanket ban on protest during the pandemic was unconstitutional and directed that guidelines on small, safe protests should be issued by relevant public bodies.167

162 See European Court of Human Rights, Guide to Article 11, Freedom of Assembly and Association, updated December 2020. For the scope of the right to protest, see also UN Human Rights Committee, General Comment 37 on article 21 Right of Peaceful Assembly, 23 July 2020, CCPR/C/GC/37

163 Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association to the Human Rights Council, July 2018, A/HRC/38/34, para. 39.

164 The European Court of Human Rights has stressed the close symbiotic link between the Article 10 and 11 ECHR freedom of expression and freedom of assembly protections. Peaceful political protests are constitutionally protected pursuant to the Article 40.6.1 The Irish Constitution guarantees to freedom of expression and assembly “It is quite clear that persons who assemble peacefully on the public highway [to protest] are prima facie entitled to the benef=it of the constitutional guarantee” – Francis Hyland v. Dundalk Racing [2014] IEHC 60 at para. 76. per Hogan J. see also: The People (DPP) v. Kehoe [1983] I.R. 136, 139 per McCarthy J.

165 ICCL, ICCL calls on Government to respect rights to protest, worship and family life, 29 March 2021.166 See for example, Joseph Nasr, Germans have right to protest during coronavirus pandemic: court, 16 April 2020.167 For more on the right to protest in a pandemic see for example, ECNL, Protest in a time of pandemic, 2020; INCLO, Protesting during a

pandemic: State responses during Covid-19, April 2021.

https://www.echr.coe.int/Documents/Guide_Art_11_ENG.pdf

https://www.ohchr.org/EN/HRBodies/CCPR/Pages/GCArticle21.aspx

http://undocs.org/A/HRC/38/34

https://www.constitution.ie/Documents/Bhunreacht_na_hEireann_web.pdf

https://www.iccl.ie/news/iccl-calls-on-government-to-respect-rights-to-protest-worship-family-life/

https://www.reuters.com/article/us-health-coronavirus-germany-protests-idUSKCN21Y220

https://ecnl.org/sites/default/files/2020-08/Protest-in-a-Time-of-Pandemic.pdf




168 Conor Gallagher, Gardai investigate organisers of 38 Dublin protests so far this year, Irish Times, 23 March 2021 and see Robin Schiller, DPP directs prosecutions in relation to some of the 259 protests that have taken place in Dublin since start of pandemic, Irish Independent, 26 January 2021.

169 See eg Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association to the Human Rights Council, July 2018, A/HRC/38/34, para. 39.

170 SI No. 121 of 2020, reg. 5.171 SI No. 352 of 2020, reg. 5.172 SI No. 168 of 2020, reg. 10A as amended by SI No. 171 of 2021, reg. 2. Attendance at a dwelling event for ‘social or recreational purposes’

attracted a criminal penalty from 31 December 2020. See SI No. 701 of 2020, reg. 7.173 Conor Gallagher, DPP to consider charges against protest organisers, The Irish Times, 7 October 2020.174 Conor Gallagher, Gardai investigate organisers of 38 Dublin protests so far this year, Irish Times, 23 March 2021; Robin Schiller, DPP directs

prosecutions in relation to some of the 259 protests that have taken place in Dublin since start of pandemic, Irish Independent, 26 January 2021.175 Ralph Riegel, Protests block Spanish and French trawlers from unloading their catch over virus fears, Irish Independent, 24 March 2020; Seán

Mac an tSíthigh, Blockade prevents fishing trawler landing catch at Dingle, RTE, 20 April 2020; Dominic McGrath, Dingle protesters stop Spanish trawler from landing at harbour, citing Covid-19 fears, 20 April 2020.

176 Sarah O’Dwyer, ‘Deplorable’ treatment: Strong support for Debenhams staff as they protest outside Cork stores, Echolive, 21 April 2020.177 Sarah O’Dwyer, ‘Deplorable’ treatment: Strong support for Debenhams staff as they protest outside Cork stores, Echolive, 21 April 2020.

ICCL is concerned at reports that a number of protest organisers are being investigated and prosecuted for breach of Covid-19 Regulations.168 UN human rights experts have strongly advocated against the criminalisation of peaceful protesters.169

Protest and Policing

Gardaí appear to have interpreted the restrictions relating to events in the Emergency Regulations as applicable to protests. Each set of regulations has put limits on indoor and outdoor gatherings. Under the most stringent restrictions, no events, outside a list of prescribed activities, were permitted.170 At lower levels of restrictions, up to 100 participants could gather together for an event outdoors.171 The 2020 regulations made organisers of events criminally liable but not participants. This situation changed in April 2021 when the Minister for Health signed regulations specifically criminalising attendance at an event beyond specified exemptions, including for work, education and to obtain services.172

Gardaí have investigated organisers of protests for breaches of Covid-19 regulations and have passed files to the DPP for potential prosecution.173 The Dublin City Joint Policing Committee were informed that the DPP have recommended some prosecutions of protest organisers and, as of March 2021 “some proceedings have begun”.174 However, it is unclear what protest organisers have been investigated and prosecuted and on what basis.

ICCL believes that protests should not be considered on the same footing as other ‘events’ given that protesters are exercising a fundamental right protected

by law. We consider that prosecutions for exercising a fundamental right should never take place.

In any event, decisions by Gardaí to investigate protest organisers do not seem to have taken place on a consistent basis or in accordance with a clear and public decision-making framework. ICCL has identified clear differences in the policing of protest during the pandemic and much uncertainty among protest organisers as to what was and was not legal at different times, including at the time of writing.

A number of examples of what ICCL views as inconsistent policing of protests are examined below.

Dingle protests: Early in the pandemic, demonstrations by fishermen protesting incoming trawlers in Dingle were permitted by Gardaí who tolerated the protests while encouraging protesters to maintain social distancing and mask wearing.175

ICCL considered that this was an example of a positive approach to policing protest in a pandemic.

Debenhams Workers’ Protests: In April 2020, Debenhams workers received notice that stores closed for the pandemic would never reopen. Workers held protests in response and have been protesting around the country outside Debenhams stores regularly since then. ICCL has noted a marked inconsistency in approach by Gardaí to the policing of these protests. Early protests held in Cork were monitored by Gardaí but were not dispersed.176 These protests were, in fact, attended by the Lord Mayor Councillor of Cork to express solidarity.177 The same week, Debenhams workers in Dublin who also wore masks and observed social distancing had their names taken by Gardaí,

"UN human rights experts have strongly advocated against the criminalisation of peaceful protesters."

https://www.irishtimes.com/news/crime-and-law/garda%C3%AD-investigate-organisers-of-38-dublin-protests-so-far-this-year-1.4518325

https://www.independent.ie/news/dpp-directs-prosecutions-in-relation-to-some-of-the-259-protests-that-have-taken-place-in-dublin-since-start-of-pandemic-40013616.html


http://undocs.org/A/HRC/38/34



https://www.irishtimes.com/news/crime-and-law/dpp-to-consider-charges-against-protest-organisers-1.4373719

https://www.irishtimes.com/news/crime-and-law/garda%C3%AD-investigate-organisers-of-38-dublin-protests-so-far-this-year-1.4518325



https://www.independent.ie/irish-news/protests-block-spanish-and-french-trawlers-from-unloading-their-catch-over-virus-fears-39070681.html

https://www.rte.ie/news/ireland/2020/0420/1132530-fishing-protest/

https://www.thejournal.ie/dingle-spain-trawler-protests-fishing-5078825-Apr2020/

https://www.thejournal.ie/dingle-spain-trawler-protests-fishing-5078825-Apr2020/

https://www.echolive.ie/corknews/arid-40121000.html

https://www.echolive.ie/corknews/arid-40121000.html


168 Conor Gallagher, Gardai investigate organisers of 38 Dublin protests so far this year, Irish Times, 23 March 2021 and see Robin Schiller, DPP directs prosecutions in relation to some of the 259 protests that have taken place in Dublin since start of pandemic, Irish Independent, 26 January 2021.

169 See eg Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association to the Human Rights Council, July 2018, A/HRC/38/34, para. 39.

170 SI No. 121 of 2020, reg. 5.171 SI No. 352 of 2020, reg. 5.172 SI No. 168 of 2020, reg. 10A as amended by SI No. 171 of 2021, reg. 2. Attendance at a dwelling event for ‘social or recreational purposes’

attracted a criminal penalty from 31 December 2020. See SI No. 701 of 2020, reg. 7.173 Conor Gallagher, DPP to consider charges against protest organisers, The Irish Times, 7 October 2020.174 Conor Gallagher, Gardai investigate organisers of 38 Dublin protests so far this year, Irish Times, 23 March 2021; Robin Schiller, DPP directs

prosecutions in relation to some of the 259 protests that have taken place in Dublin since start of pandemic, Irish Independent, 26 January 2021.175 Ralph Riegel, Protests block Spanish and French trawlers from unloading their catch over virus fears, Irish Independent, 24 March 2020; Seán

Mac an tSíthigh, Blockade prevents fishing trawler landing catch at Dingle, RTE, 20 April 2020; Dominic McGrath, Dingle protesters stop Spanish trawler from landing at harbour, citing Covid-19 fears, 20 April 2020.

176 Sarah O’Dwyer, ‘Deplorable’ treatment: Strong support for Debenhams staff as they protest outside Cork stores, Echolive, 21 April 2020.177 Sarah O’Dwyer, ‘Deplorable’ treatment: Strong support for Debenhams staff as they protest outside Cork stores, Echolive, 21 April 2020.

ICCL is concerned at reports that a number of protest organisers are being investigated and prosecuted for breach of Covid-19 Regulations.168 UN human rights experts have strongly advocated against the criminalisation of peaceful protesters.169

Protest and Policing

Gardaí appear to have interpreted the restrictions relating to events in the Emergency Regulations as applicable to protests. Each set of regulations has put limits on indoor and outdoor gatherings. Under the most stringent restrictions, no events, outside a list of prescribed activities, were permitted.170 At lower levels of restrictions, up to 100 participants could gather together for an event outdoors.171 The 2020 regulations made organisers of events criminally liable but not participants. This situation changed in April 2021 when the Minister for Health signed regulations specifically criminalising attendance at an event beyond specified exemptions, including for work, education and to obtain services.172

Gardaí have investigated organisers of protests for breaches of Covid-19 regulations and have passed files to the DPP for potential prosecution.173 The Dublin City Joint Policing Committee were informed that the DPP have recommended some prosecutions of protest organisers and, as of March 2021 “some proceedings have begun”.174 However, it is unclear what protest organisers have been investigated and prosecuted and on what basis.

ICCL believes that protests should not be considered on the same footing as other ‘events’ given that protesters are exercising a fundamental right protected

by law. We consider that prosecutions for exercising a fundamental right should never take place.

In any event, decisions by Gardaí to investigate protest organisers do not seem to have taken place on a consistent basis or in accordance with a clear and public decision-making framework. ICCL has identified clear differences in the policing of protest during the pandemic and much uncertainty among protest organisers as to what was and was not legal at different times, including at the time of writing.

A number of examples of what ICCL views as inconsistent policing of protests are examined below.

Dingle protests: Early in the pandemic, demonstrations by fishermen protesting incoming trawlers in Dingle were permitted by Gardaí who tolerated the protests while encouraging protesters to maintain social distancing and mask wearing.175

ICCL considered that this was an example of a positive approach to policing protest in a pandemic.

Debenhams Workers’ Protests: In April 2020, Debenhams workers received notice that stores closed for the pandemic would never reopen. Workers held protests in response and have been protesting around the country outside Debenhams stores regularly since then. ICCL has noted a marked inconsistency in approach by Gardaí to the policing of these protests. Early protests held in Cork were monitored by Gardaí but were not dispersed.176 These protests were, in fact, attended by the Lord Mayor Councillor of Cork to express solidarity.177 The same week, Debenhams workers in Dublin who also wore masks and observed social distancing had their names taken by Gardaí,

"UN human rights experts have strongly advocated against the criminalisation of peaceful protesters."


were told to disperse, and in some instances were accompanied to public transport to ensure they went home.178 ICCL expressed concern at the dispersal of protesters. We considered this a disproportionate interference with the right to protest given the small number of participants in attendance, all of whom were clearly making efforts to comply with public health guidelines.179

More recently, reports that a picket line outside Debenhams in Waterford were forcibly broken up by Gardaí indicates that Gardaí may be taking a more interventionist approach.180 ICCL notes that the Special Rapporteur on Freedom of Assembly and Association has urged States to “facilitate and protect peaceful assemblies, including through negotiation and mediation. Wherever possible, law enforcement authorities should not resort to force during peaceful assemblies”. ICCL considers any use of force by Gardai against protesters highly concerning.

Black Lives Matter protests: Later in the summer of 2020, Black Lives Matter protests took place in Dublin and across the country.181 The level of solidarity and outpouring of emotion around the issue of racism in response to the protests occurring internationally was striking. Despite clear efforts at following the public health guidelines, Gardaí sought to disperse the protest and later reported that it was investigating organisers and sending a file to the DPP though ICCL now understands that the DPP has said no one from these particular protests will be prosecuted.182 In ICCL’s view threatening protest organisers with criminal sanctions was inappropriate. The organisers, according to media reports, had intended the protest to be small183 and compliant with public guidelines but, unexpectedly, thousands took to the streets. The threat and use of criminal sanctions against protesters during the pandemic have been documented and severely criticised by numerous human rights advocates globally.184

IPSC Protests: In May 2021, the Ireland Palestine Solidarity Campaign sought clarity from Gardaí as

to whether organisers of a socially distanced protest requiring all participants to wear masks in Dublin would be prosecuted. Gardaí explicitly stated that the Covid-19 Regulations permitted events of up to 15 people and anyone organising an event larger than that would be prosecuted. The organisers cancelled the protest as a result of this communication. ICCL expressed concern that the right to protest was not being protected in line with human rights law, which requires State actors to facilitate protest and demands that limits are demonstrably necessary and proportionate. We again called on Government to treat protests as a separate category to social or recreational events in the Covid-19 regulations and to issue clear guidelines on what could be considered “pandemic safe protests”.185 While Gardaí have a certain amount of discretion under the current regulations in deciding how to police events, they do not now, nor have they ever had the power to either permit or prohibit peaceful protests.

Anti-lockdown protests: As the pandemic wore on, we saw growing protests by people opposed to the restrictions and expressing alternative scientific or conspiracy theories about the degree of the threat to public health posed by Covid-19. Many people condemned these protests because of the risk they posed to public health - very few participants wore masks and there seemed to be no efforts at social distancing. Others condemned the protests because of the ‘alternative facts’ they were propounding and because of reports that they were organised or heavily influenced by far-right elements in Ireland.

At first the Garda response was to try and stop the protests from happening. For example, when a protest was planned at Phoenix Park, the Gardaí closed the gates to prevent the gathering. Other anti-lockdown protests were allowed to go ahead, however, for example in Mayo.186 Again we saw inconsistency in policing.

As these protests became a regular feature outside the GPO on a Saturday and then moved to Custom

178 Kitty Holland and Barry Roche, Debenhams workers protest ahead of consultation closing on Monday, The Irish Times, 15 May 2020; Trevor Quinn, Sacked Debenhams staff to protest outside Bank of Ireland branches across the country, Dublin Live, 27 May 2020.

179 Colin Gleeson, Rights group wants protests to be permitted under Covid-19 laws, The Irish Times, 24 April 2020.180 Eoghan Daltan, Former Debenhams workers removed from blockade after 4-hour standoff, The Examiner, 11 May 2020.181 Mícheál Ó Scannáil, Gardai investigating If Dublin Black Lives Matter solidarity protest breached lockdown restrictions, Irish Independent, 2 June

2020; Jack Beresford, Gardai investigating potential lockdown rules breach at Dublin Black Lives Matter protest, Irish Post, 3 June 2020. 182 Conor Lally, Gardaí investigate Dublin Black Lives Matter protest over Covid-19 rule breach, The Irish Times, 2 June 2020. Conor Lally, Black Lives

Matter protest organisers will not face prosecution, The Irish Times, 19 May 2021.183 Conor Lally, Why is there a criminal investigation into the Black Lives Matter Dublin protest? The Irish Times, 3 June 2020.184 INCLO, Protesting during a pandemic: State responses during Covid-19, April 2021.185 Ronan Duffy, Calls for facilitation of ‘peaceful protest’ as Dublin ‘Rally for Palestine’ is cancelled after garda advice, The Journal, 13 May 2021186 Anti-lockdown protest staged in Mayo, Connaught Telegraph, 16 May 2020.

https://www.irishtimes.com/news/social-affairs/debenhams-workers-protest-ahead-of-consultation-closing-on-monday-1.4254575

https://www.dublinlive.ie/news/dublin-news/sacked-debenhams-staff-protest-outside-18309541

https://www.irishtimes.com/news/social-affairs/rights-group-wants-protests-to-be-permitted-under-covid-19-laws-1.4237090

https://www.irishexaminer.com/news/munster/arid-40286288.html

https://www.independent.ie/irish-news/gardai-investigating-if-dublin-black-lives-matter-solidarity-protest-breached-lockdown-restrictions-39254408.html

https://www.irishpost.com/news/gardai-investigating-potential-lockdown-rules-breach-at-dublin-black-lives-matter-protest-186095

https://www.irishpost.com/news/Gardaí-investigating-potential-lockdown-rules-breach-at-dublin-black-lives-matter-protest-186095

https://www.irishtimes.com/news/crime-and-law/garda%C3%AD-investigate-dublin-black-lives-matter-protest-over-covid-19-rule-breach-1.4268919

https://www.irishtimes.com/news/crime-and-law/why-is-there-a-criminal-investigation-into-the-black-lives-matter-dublin-protest-1.4270112


https://www.thejournal.ie/rally-palestine-dublin-5435406-May2021/

https://www.con-telegraph.ie/2020/05/16/anti-lockdown-protest-staged-in-mayo/


House Quay, Gardaí were present and monitoring but only intervened when violent clashes emerged between protesters and counter protesters. Some expressed concern directly to ICCL that the Gardaí used a far more heavy-handed approach against the counter protests than the main protests. Human rights bodies have made it abundantly clear that the duty on the State to facilitate protest extends to protecting counter protest.187 Media reports indicate that Gardaí made the decision to investigate the organisers of anti-lockdown protests for a breach of the Covid-19 regulations and files were to be passed to the DPP.188 While we know the DPP has decided to pursue some prosecutions of protest organisers, it is unclear who these prosecutions are against.

ICCL has been firm in our support for the right to protest throughout the pandemic. We believe small, pandemic-safe protests that make best efforts to comply with public health guidelines should be facilitated.

Whether Gardaí should have a greater role to play in policing protests that so flagrantly breached public health guidelines is an important question that could be addressed through clear Government guidelines for small, safe protests and through a differentiated approach to protest depending on the level of restrictions in place.

The inconsistency in the policing of protest exposes the lack of clarity and a degree of incoherence in the emergency regulations. On the one hand, since it was not expressly prohibited, we could say the constitutional right to protest was still protected. However, on a strict reading of the regulations, if protests are interpreted as an event, at times they were entirely banned and at other times they were severely restricted. Of note, however, is the fact that up until April 2021189 the regulations only provided

187 See European Court of Human Rights, Guide to Article 11, Freedom of Assembly and Association, updated December 2020. For the scope of the right to protest, see also UN Human Rights Committee, General Comment 37 on article 21 Right of Peaceful Assembly, 23 July 2020, CCPR/C/GC/37.

188 Robin Schiller, DPP directs prosecutions in relation to some of the 259 protests that have taken place in Dublin since the start of pandemic, Irish Independent, 26 January 2021; Mark O’Brien and Robbie Kane, Gardai launch investigation into organisers of Dublin anti-lockdown protest, Dublinlive, 2 May 2021.

189 SI No. 168 of 2020, reg. 10A as amended by SI No. 171 of 2021, reg. 2 prohibits attendance at an event. Attendance at a dwelling event for ‘social or recreational purposes’ attracted a criminal penalty from 31 December 2020. See SI No. 701 of 2020, reg. 7.

4.3 Recommendations

FOR GOVERNMENT:

1. Include small, safe protests as a reasonable excuse to organise and participate in an event.

2. Issue guidelines to protest organisers and participants on how to organise and participate in a small, safe protest.

FOR AGS:

1. Develop and publish guidelines on how protests are policed during a pandemic to ensure transparency, consistency and a human rights compliant approach.

"ICCL has been firm in our support for the right to protest throughout the pandemic. We believe small, pandemic-safe protests that make best efforts to comply with public health guidelines should be facilitated."

criminal sanctions for organisers of events rather than for participants. So, arguably, participating in a protest was not banned until that point.

https://www.echr.coe.int/Documents/Guide_Art_11_ENG.pdf

https://www.ohchr.org/EN/HRBodies/CCPR/Pages/GCArticle21.aspx


https://www.dublinlive.ie/news/dublin-news/dublin-anti-lockdown-protest-garda-20511986


House Quay, Gardaí were present and monitoring but only intervened when violent clashes emerged between protesters and counter protesters. Some expressed concern directly to ICCL that the Gardaí used a far more heavy-handed approach against the counter protests than the main protests. Human rights bodies have made it abundantly clear that the duty on the State to facilitate protest extends to protecting counter protest.187 Media reports indicate that Gardaí made the decision to investigate the organisers of anti-lockdown protests for a breach of the Covid-19 regulations and files were to be passed to the DPP.188 While we know the DPP has decided to pursue some prosecutions of protest organisers, it is unclear who these prosecutions are against.

ICCL has been firm in our support for the right to protest throughout the pandemic. We believe small, pandemic-safe protests that make best efforts to comply with public health guidelines should be facilitated.

Whether Gardaí should have a greater role to play in policing protests that so flagrantly breached public health guidelines is an important question that could be addressed through clear Government guidelines for small, safe protests and through a differentiated approach to protest depending on the level of restrictions in place.

The inconsistency in the policing of protest exposes the lack of clarity and a degree of incoherence in the emergency regulations. On the one hand, since it was not expressly prohibited, we could say the constitutional right to protest was still protected. However, on a strict reading of the regulations, if protests are interpreted as an event, at times they were entirely banned and at other times they were severely restricted. Of note, however, is the fact that up until April 2021189 the regulations only provided

187 See European Court of Human Rights, Guide to Article 11, Freedom of Assembly and Association, updated December 2020. For the scope of the right to protest, see also UN Human Rights Committee, General Comment 37 on article 21 Right of Peaceful Assembly, 23 July 2020, CCPR/C/GC/37.

188 Robin Schiller, DPP directs prosecutions in relation to some of the 259 protests that have taken place in Dublin since the start of pandemic, Irish Independent, 26 January 2021; Mark O’Brien and Robbie Kane, Gardai launch investigation into organisers of Dublin anti-lockdown protest, Dublinlive, 2 May 2021.

189 SI No. 168 of 2020, reg. 10A as amended by SI No. 171 of 2021, reg. 2 prohibits attendance at an event. Attendance at a dwelling event for ‘social or recreational purposes’ attracted a criminal penalty from 31 December 2020. See SI No. 701 of 2020, reg. 7.

4.3 Recommendations

FOR GOVERNMENT:



FOR AGS:


"ICCL has been firm in our support for the right to protest throughout the pandemic. We believe small, pandemic-safe protests that make best efforts to comply with public health guidelines should be facilitated."

criminal sanctions for organisers of events rather than for participants. So, arguably, participating in a protest was not banned until that point.


IMPACT OF THE COVID-19 RESPONSE ON EVENTS AND GATHERINGS

5




IMPACT OF THE COVID-19 RESPONSE ON EVENTS AND GATHERINGS

5




"ICCL notes in particular that the Covid-19 restrictions have had a significant impact on the freedom to manifest religion or belief, despite exceptions for funerals and weddings."

5. Impact of Covid-19 response on events and gatheringsCovid-19 restrictions on events and gatherings have had a significant impact on a range of other human rights, in addition to the right to protest, including rights to freedom of assembly and association, the right to manifest one’s religion or beliefs, and the right to respect for private and family life.

5.1 Legal framework – Right to religious freedom and right to respect for private and family lifeThe right to freedom of thought, conscience and religion is protected by the Irish Constitution,190 Article 9 of the ECHR and other international human rights treaties.191 Article 9(2) protects the freedom to manifest one’s religion or belief. While the right to hold religious or other beliefs can never be infringed upon, the right to manifest those beliefs can be restricted for a range of reasons. These reasons include public health, but, as emphasised throughout this report, those restrictions must be prescribed by law, and must be necessary and proportionate.

The right to respect for private and family life, home and correspondence is protected by Article 8 of the ECHR and other international human rights treaties.192 State interference with private life must be kept to an absolute minimum. However, similar to the right to manifest belief, this right can be restricted where those restrictions are necessary and proportionate. The Irish Constitution contains protections for the family and193 outlines that “the dwelling of every citizen is inviolable.”194 The right to privacy has been recognised as an unenumerated constitutional right.195

A comprehensive human rights analysis of the impact of Covid-19 restrictions on events, including artistic and cultural events, is beyond the scope of this report. However, a number of important developments, including court challenges to restrictions and a changing approach in the regulations, are highlighted and analysed, and we make several recommendations for the future.

5.2 Impact of restrictions on religious events and gatheringsAs noted above, restrictions on events and gatherings have been a hallmark of the Government’s response to the pandemic since the first set of Covid-19 related regulations in April 2020. This is in line with health advice and understandable given human transmission of the disease and the potential for significant transmission where large numbers of people gather together. Given this, it is likely that restrictions on large gatherings in general can be considered proportionate interferences with the relevant rights. However, each set of restrictions must be demonstrably connected to evidence that they are necessary and that they are the most minimal interference with rights possible to achieve that aim.

ICCL notes in particular that the Covid-19 restrictions have had a significant impact on the freedom to manifest religion or belief, despite exceptions for funerals and weddings. Initially, in April 2020, a person could only attend the funeral of a close family member or if they had lived in the same residence as the deceased person at the time of their death196. However, this was recognised as too restrictive and was later expanded197. This could be described as a recognition that the initial restrictions were disproportionate.

The numbers of people who can attend funerals have ranged from 6198, 10199, 25200 to 50201 since

190 Constitution of Ireland, Article 44.2.1°.191 ICCPR, Article 18; CRC, Article 14; CRPD, Article 21.192 ICCPR, Article 17; CRC, Article 16.193 Constitution of Ireland, Article 41.194 Constitution of Ireland, Article 40.5.195 Kennedy v. Ireland [1987] I.R. 587.196 SI No. 121 of 2020197 SI No. 174 of 2020198 SI No. 295 of 2020199 SI No. 701 of 2020; SI No. 168 of 2021200 SI No. 352 of 2020; SI No. 413 of 2020; SI No. 442 of 2020201 SI No. 217 of 2021.


April 2020. Specific provisions in relation to wedding receptions emerged at the end of August 2020 when the maximum number of attendees was capped at 50 persons.202 This number was later reduced to 25 persons and to 6 persons in specific counties and from specific dates.203

There have been no other specific exceptions to the ban or severe limitations on numbers for events in relation to other religious events or gatherings. Events that were prohibited or “relevant events” in the regulations were defined as events held or to be held, “for social, recreational, exercise, cultural, entertainment or community reasons.”204 It did not include events for religious reasons. This led to debate in the Oireachtas and in the media in November 2020 over whether a priest holding a religious service would be breaching restrictions and could face criminal sanction.205 The Department of Health stated that “There is no penalty attached to religious events because they are not included in the definition of ‘relevant event.’”206 Despite this clarification, there were media reports that AGS threatened priests with prosecution if they celebrate Mass with people in church.207 IHREC have also highlighted this confusion over whether religious services were prohibited by the regulations and how it “creates a real risk of the uneven application of enforcement powers by the Gardai.”208 ICCL has consistently called for greater clarity in communication of what the Covid-19 Regulations contained and for more consistent policing.

In November 2020, an individual sought leave to bring judicial review proceedings against the Minister for Health, arguing that Covid-19 restrictions which do not allow people to attend religious services, other than weddings and funerals, breached the constitutional right to religious freedom.209 This case is ongoing and has highlighted the lack of clarity over the regulations and potential restrictions in relation to religious gatherings.

In March 2021, the High Court directed the applicant to write to the State to clarify whether there is a legal ban on leaving your home to attend a religious service. The Court stated that the State would have

two weeks to respond and adjourned the case to 13 April 2021. On 12 April 2021, further restrictions were introduced providing that a person can only attend a specified event in certain prescribed circumstances, including in order to work, participate in education, access an essential service, and in the case of a minister of religion or priest, to lead workshop or services remotely or minister to the sick.210 A specified event was defined as an event other than a wedding reception, sporting event, training event, or funeral. Attending an event not in these prescribed circumstances constituted a penal offence. The Government thus confirmed to the High Court that attendance at a public mass, other than a funeral or wedding mass, was a criminal offence.211

The new regulations were criticised by religious leaders. The Archbishop of Armagh called them “draconian” and highlighted the fact that they were introduced in a “clandestine” manner, as they were made on 12 April 2021, came into operation on 13 April 2021, and were published on 16 April 2021. This rushed approach to the making of, and poor communication of the content of, regulations has long been criticised by ICCL.

There is a need for further clarity on the status of religious gatherings under Covid-19 regulations. As of 10 May 2021, the regulations have eased in relation to holding and attending events, however, they do not explicitly provide for religious gatherings other than for funerals or wedding receptions212. Despite the lack of explicit provision in the law, the Taoiseach announced that from 10 May 2021, places of worship can recommence in-person services with a maximum of 50 attendees.213

As with protest, we consider a blanket ban on religious services, except for weddings and funerals, could be a disproportionate measure and we believe Government should provide for small, safe religious gatherings when the public health situation permits, given the clear protections in human rights law for the right to manifest belief.

202 SI No. 326 of 2020203 SI No. 442 of 2020; SI No. 701 of 2020.204 SI No. 448 of 2020, reg. 4.205 SI No. 448 of 2020.206 Ceimin Burke, Department of Health says priests can’t be jailed for holding mass during coronavirus restrictions, The Journal, 6 November 2020.207 Marese McDonagh, Gardai give ‘last warning’ to parish priest over ‘open-door’ Mass, The Irish Times, 19 November 2020.208 IHREC, Ireland’s Emergency Powers during the Covid-19 pandemic, 24 February 2021, p. 68.209 Aodhan O’Faolain, Ganley takes legal challenge to Level 5 ban on attending Mass, The Irish Times, 6 November 2020.210 SI No. 217 of 2021.211 Mary Carolan, Attending Mass a criminal offence under Covid-19 regulations, court hears, The Irish Times, 14 April 2021.212 SI No. 217 of 2021.213 Orla Dwyer, 50 people to be allowed at religious services from 10 May – but no communions or confirmations, The Journal, 29 April 2021.





https://www.thejournal.ie/priests-cant-be-arrested-mass-ireland-coronavirus-5254820-Nov2020/

https://www.irishtimes.com/news/social-affairs/garda%C3%AD-give-last-warning-to-parish-priest-over-open-door-mass-1.4414096


https://www.irishtimes.com/news/crime-and-law/courts/high-court/ganley-takes-legal-challenge-to-level-5-ban-on-attending-mass-1.4402319


https://www.irishtimes.com/news/crime-and-law/courts/high-court/attending-mass-a-criminal-offence-under-covid-19-regulations-court-hears-1.4537336


https://www.thejournal.ie/weddings-funerals-may-june-2021-ireland-5423710-Apr2021/


April 2020. Specific provisions in relation to wedding receptions emerged at the end of August 2020 when the maximum number of attendees was capped at 50 persons.202 This number was later reduced to 25 persons and to 6 persons in specific counties and from specific dates.203

There have been no other specific exceptions to the ban or severe limitations on numbers for events in relation to other religious events or gatherings. Events that were prohibited or “relevant events” in the regulations were defined as events held or to be held, “for social, recreational, exercise, cultural, entertainment or community reasons.”204 It did not include events for religious reasons. This led to debate in the Oireachtas and in the media in November 2020 over whether a priest holding a religious service would be breaching restrictions and could face criminal sanction.205 The Department of Health stated that “There is no penalty attached to religious events because they are not included in the definition of ‘relevant event.’”206 Despite this clarification, there were media reports that AGS threatened priests with prosecution if they celebrate Mass with people in church.207 IHREC have also highlighted this confusion over whether religious services were prohibited by the regulations and how it “creates a real risk of the uneven application of enforcement powers by the Gardai.”208 ICCL has consistently called for greater clarity in communication of what the Covid-19 Regulations contained and for more consistent policing.

In November 2020, an individual sought leave to bring judicial review proceedings against the Minister for Health, arguing that Covid-19 restrictions which do not allow people to attend religious services, other than weddings and funerals, breached the constitutional right to religious freedom.209 This case is ongoing and has highlighted the lack of clarity over the regulations and potential restrictions in relation to religious gatherings.

In March 2021, the High Court directed the applicant to write to the State to clarify whether there is a legal ban on leaving your home to attend a religious service. The Court stated that the State would have

two weeks to respond and adjourned the case to 13 April 2021. On 12 April 2021, further restrictions were introduced providing that a person can only attend a specified event in certain prescribed circumstances, including in order to work, participate in education, access an essential service, and in the case of a minister of religion or priest, to lead workshop or services remotely or minister to the sick.210 A specified event was defined as an event other than a wedding reception, sporting event, training event, or funeral. Attending an event not in these prescribed circumstances constituted a penal offence. The Government thus confirmed to the High Court that attendance at a public mass, other than a funeral or wedding mass, was a criminal offence.211

The new regulations were criticised by religious leaders. The Archbishop of Armagh called them “draconian” and highlighted the fact that they were introduced in a “clandestine” manner, as they were made on 12 April 2021, came into operation on 13 April 2021, and were published on 16 April 2021. This rushed approach to the making of, and poor communication of the content of, regulations has long been criticised by ICCL.

There is a need for further clarity on the status of religious gatherings under Covid-19 regulations. As of 10 May 2021, the regulations have eased in relation to holding and attending events, however, they do not explicitly provide for religious gatherings other than for funerals or wedding receptions212. Despite the lack of explicit provision in the law, the Taoiseach announced that from 10 May 2021, places of worship can recommence in-person services with a maximum of 50 attendees.213

As with protest, we consider a blanket ban on religious services, except for weddings and funerals, could be a disproportionate measure and we believe Government should provide for small, safe religious gatherings when the public health situation permits, given the clear protections in human rights law for the right to manifest belief.

202 SI No. 326 of 2020203 SI No. 442 of 2020; SI No. 701 of 2020.204 SI No. 448 of 2020, reg. 4.205 SI No. 448 of 2020.206 Ceimin Burke, Department of Health says priests can’t be jailed for holding mass during coronavirus restrictions, The Journal, 6 November 2020.207 Marese McDonagh, Gardai give ‘last warning’ to parish priest over ‘open-door’ Mass, The Irish Times, 19 November 2020.208 IHREC, Ireland’s Emergency Powers during the Covid-19 pandemic, 24 February 2021, p. 68.209 Aodhan O’Faolain, Ganley takes legal challenge to Level 5 ban on attending Mass, The Irish Times, 6 November 2020.210 SI No. 217 of 2021.211 Mary Carolan, Attending Mass a criminal offence under Covid-19 regulations, court hears, The Irish Times, 14 April 2021.212 SI No. 217 of 2021.213 Orla Dwyer, 50 people to be allowed at religious services from 10 May – but no communions or confirmations, The Journal, 29 April 2021.


5.3 Restrictions on other eventsRestrictions on events have also infringed on the rights to family and private life and freedom of assembly and association. Since 31 August 2020, the regulations have provided for differing levels of restrictions on events in private dwellings,214 including limiting persons attending a home for social or recreational purposes to 6 persons from no more than 3 different households215 and, under the most severe restrictions, limiting household gatherings to persons who reside in the private dwelling.216 These restrictions infringed on the right to family, private life and the home and were particularly challenging for people who lived alone and persons in need of a wide range of supports for health or other reasons.

Where there has been a blanket ban on gatherings in households, that may constitute a disproportionate interference with the right to private and family life. In October 2020, the regulations introduced the possibility of a support bubble217 or “paired households”.218 A paired household can be made up of a household and a relevant household, which is one that consists of a person who lives alone, one or more vulnerable people who live together, or one or more vulnerable people and one other person all of whom live together. People in a paired household can visit the other household. This was an important measure which Ireland was slow to introduce in comparison to other countries.219 New Zealand introduced support bubbles in its initial lockdown in March 2020 and England introduced them in June 2020.220 ICCL considers that this measure should have been introduced sooner and we consider that, like in New Zealand, at lower levels of restrictions every household should have been allowed to pair with one other household where necessary to keep people “safe and well”.221

Childcare pairing arrangements were provided for in the regulations in April 2021.222 This was a positive development but given the significant challenges around childcare while parents were working from home, this measure should have been introduced sooner and should be retained in any future lockdown. The disproportionate and gendered impact that the pandemic and related restrictions have had on caregivers, especially single parents, have been highlighted throughout the pandemic.223

Effects of the lockdown(s) have included increased isolation, higher stress, loss of key supports and neglect of health needs.224 The Government must consider how to provide better support for caregivers and those at risk of isolation in future, including through conducting a human rights impact assessment at early and regular stages of restrictions.225

214 SI No. 326 of 2020.215 SI No. 352 of 2020.216 SI No. 442 of 2020.217 Department of the Taoiseach, Support bubbles, 19 October 2020.218 SI No. 448 of 2020.219 Jennifer O’Connell, Covid-19 Level 5 support bubbles: Everything you need to know, The Irish Times, 20 October 2020.220 Nick Long, New Zealand did ‘support bubbles’ first. Here’s what England can learn from them, The Guardian, 12 June 2020; Cillian Sherlock,

Explained: What is a support bubble? RTE, 20 October 2020.221 Nick Long, New Zealand did ‘support bubbles’ first. Here’s what England can learn from them, The Guardian, 12 June 2020.222 SI No. 168 of 2021.223 See for example, Suzanne Cahill, Burned-out families: Restore care services for vulnerable elderly people now, The Irish Times, 17 November

2020.224 See for example, Tina Kilaberia et al., Impact of the Covid-19 pandemic on family caregivers, 2020 Innov. Aging 4 (Suppl. 1), 950 (“Caregivers at

particular risk were those facing multiple demands and experiencing compromised resources under the pandemic, such as closure of adult day care”).225 We note some attempts to identify the social implications of Covid-19 but would urge Government to conduct such an assessment within a

human rights framework, see for example, Department of Taoiseach, Report on the Social Implications of COVID-19 in Ireland, 5 June 2020.

5.4 Recommendations

FOR THE GOVERNMENT:

1. Refrain from blanket bans on gatherings

2. Ensure that restrictions on private and family life are proportionate and any disproportionate negative impact on certain groups, such as people living alone, vulnerable people, and caregivers, is addressed, such as through providing for support bubbles and childcare pairing arrangements.




https://www.gov.ie/en/publication/3516d-support-bubbles/


https://www.irishtimes.com/life-and-style/health-family/covid-19-level-5-support-bubbles-everything-you-need-to-know-1.4386022

https://www.theguardian.com/commentisfree/2020/jun/12/new-zealand-support-bubbles-england

https://www.rte.ie/news/coronavirus/2020/1019/1172534-extended-household-bubble-explained/

https://www.theguardian.com/commentisfree/2020/jun/12/new-zealand-support-bubbles-england


https://www.irishtimes.com/opinion/burned-out-families-restore-care-services-for-vulnerable-elderly-people-now-1.4410823

C://Users/DA/Downloads/75567_644ff379-a523-40ef-a9af-20935da0d91c.pdf


IMPACT OF THE COVID-19

RESPONSE ON THE RIGHT

TO FREE MOVEMENT

6






TO FREE MOVEMENT

6




6. Impact of Covid-19 response on the right to free movement6.1 Legal framework- Right to free movementThe right to free movement is a fundamental right that is connected to the right to liberty. The requirement to stay at home and, at different periods, to stay within a specific geographical location, (such as within our county), during the pandemic can be considered a significant infringement on one of our most basic freedoms. The right to free movement is protected by ECHR226 and international human rights treaties.227 Both right to travel within the country and the right to travel abroad have been recognised as constitutional rights.228 European Union (EU) treaty law also protects the right to free movement across the EU.229

Covid-19 restrictions requiring the population to stay in one place infringed the right to liberty and freedom of movement but, as with many other rights, human rights law permits limitations on this right where such limitations are prescribed by law and are necessary and proportionate. The law must also be clear and accessible.

6.2 Impact of the restrictions on the right to free movementThe extent to which Covid-19 regulations restricted movement and travel varied between April 2020 and May 2021. In the first set of Covid-19 regulations, a person was not allowed to leave their place of residence without a reasonable excuse and a 2km geographical perimeter was imposed for exercise. This was a penal provision.230 ICCL campaigned to remove criminal sanctions for breach of provisions restricting movement. We welcomed the decriminalisation of the restrictions on movement in June 2020.231

However, restrictions on movement introduced in October 2020 were redesignated as penal provisions, which ICCL noted “marked a concerning departure from the [previous] change in approach to enforcing regulations.”232

Limits on movement continued to change depending on what level of restrictions were imposed. Other restrictions on movement and travel have included restricting travel to within a person’s county or within 20km of one’s place of residence for exercise, social or recreational purposes233 and restrictions on inter-county travel without a reasonable excuse.234 From 31 December 2020 to April 2021, a geographical limit of 5km for exercise was imposed.235 ICCL noted some public confusion around whether this geographical limit on movement was limited to exercise or applied to movement in general.

These interferences with the right to movement, as with all interferences with rights, have to be demonstrably necessary and proportionate. ICCL understands that limits on movement were put in place in an attempt to isolate transmission of Covid-19 to particular areas. However, we consider that the prolonged interference with the right to liberty such as that imposed from 30 December 2020 to April 2021 may have been disproportionate given the blanket application of this limit to all areas of the country, which was not necessarily linked to numbers of cases of Covid-19. The Emergency Legislation gave the Minister for Health the power to make ‘Affected Area Orders’ where restrictions would apply to some areas of the country and not to others.

This approach appeared to be applied in August 2020 when particular restrictions were applied to certain counties and not to others.236 ICCL considers that where there are geographical restrictions to the right to movement, a targeted approach linked with numbers of cases should be applied to ensure that the interference with the right to movement is the most minimal possible and the interference is

226 Protocol 4 to the ECHR, Article 2.227 ICCPR, Article 12 (“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom

to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. 4. No one shall be arbitrarily deprived of the right to enter his own country”). The same right is protected under Article 2(1) Protocol No. 4 ECHR (ratified by Ireland in 1968).

228 State (Ryan) v. Attorney General [1965] I.R. 294; State (M) v. Attorney General [1979] I.R. 73.229 An in-depth look at EU Treaty rights is beyond the scope of this report but the right to free movement across the EU is protected by the Treaty

on the Functioning of the European Community, article 45; the Maastricht Treaty 1992 and EU Directive 2004/38/EC.230 SI No. 121 of 2020.231 ICCL, ICCL welcomes decriminalisation of restriction on movement and return to policing by consent, 8 June 2020.232 ICCL, Monitoring rights during the pandemic, 2020.233 SI No. 206 of 2020.234 SI No. 413 of 2020.235 SI No. 701 of 2020.236 SI No. 295 of 2020.

https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:en:PDF


https://www.iccl.ie/news/iccl-welcomes-decriminalisation-of-restriction-on-movement/







demonstrably necessary and proportionate to the aim of protecting public health.

The inclusion of a non-exhaustive list of ‘reasonable excuses’ within the regulations to allow for movement beyond the geographical limitation (or at times requirement to stay at home) included access to goods and services, access to health care, essential work and vital family matters. ICCL considers that what constituted a ‘reasonable excuse’ was not well communicated and there remained confusion among the population as to when they could or could not leave home or leave the geographical perimeter imposed by the regulations. Allowing for some degree of discretion in such a list is positive, particularly where restrictions are defined as penal provisions. However, ICCL considers that the combination of a lack of clear communication as to what constituted a reasonable excuse along with an unclear basis for exercising this discretion led to confusion.

In its report on the exercise of the emergency powers, IHREC recommended that the regulations should have contained a complete list of reasonable excuses with a separate provision providing that “a person may leave their home, or county, or the State for urgent and compelling reasons.” IHREC considered that such an approach would have provided “greater guidance by limiting the flexibility to truly exceptional cases” and by separating the complete list of excuses from exceptional situations.237

ICCL agrees that much greater clarity on what precisely constitutes a reasonable excuse to leave one’s home or to travel beyond a geographical restriction is necessary both within regulations and in terms of Government communication on the content of regulations. We consider a degree of discretion should be included but the parameters of that discretion need to be more clearly defined. ICCL supports IHREC’s suggestion of a separate provision allowing travel for urgent and compelling cases.

Travel to an airport or port: Restrictions on leaving one’s place of residence to travel to an airport or port for the purpose of leaving the State without a reasonable excuse were introduced in 2021.238 This was a penal provision, carrying fines. As discussed in the section on legal framework and enforcement above, ICCL has consistently expressed its opposition to an over reliance on criminal enforcement of public health restrictions, calling instead for a response in line with recommendations by behavioural psychologists

that included clearer and targeted communication and better supports for those struggling to comply with restrictions.

237 IHREC, Ireland’s Emergency Powers during the Covid-19 pandemic, 24 February 2021, p. 76.238 SI No. 29 of 2021.

6.3 Recommendations

FOR THE GOVERNMENT:

1. Ensure that restrictions on human rights, especially penal provisions, are defined with sufficient clarity, such as in relation to the use of the term “reasonable excuse”.

2. Ensure that where restrictions impinge on rights, the Government takes particular care to communicate the precise scope of these restrictions, in particular in relation to restrictions on free movement.

3. Where there are geographical restrictions to the right to movement, a targeted approach linked with numbers of cases should be applied to ensure that the interference with the right to movement is the most minimal possible and the interference is demonstrably necessary and proportionate to the aim of protecting public health.

4. Ensure that any penalties for breach of restrictions that constitute an interference with rights, especially fixed penalty provisions, are proportionate to the aim of protecting public health and to the harm caused by the particular breach.




demonstrably necessary and proportionate to the aim of protecting public health.

The inclusion of a non-exhaustive list of ‘reasonable excuses’ within the regulations to allow for movement beyond the geographical limitation (or at times requirement to stay at home) included access to goods and services, access to health care, essential work and vital family matters. ICCL considers that what constituted a ‘reasonable excuse’ was not well communicated and there remained confusion among the population as to when they could or could not leave home or leave the geographical perimeter imposed by the regulations. Allowing for some degree of discretion in such a list is positive, particularly where restrictions are defined as penal provisions. However, ICCL considers that the combination of a lack of clear communication as to what constituted a reasonable excuse along with an unclear basis for exercising this discretion led to confusion.

In its report on the exercise of the emergency powers, IHREC recommended that the regulations should have contained a complete list of reasonable excuses with a separate provision providing that “a person may leave their home, or county, or the State for urgent and compelling reasons.” IHREC considered that such an approach would have provided “greater guidance by limiting the flexibility to truly exceptional cases” and by separating the complete list of excuses from exceptional situations.237

ICCL agrees that much greater clarity on what precisely constitutes a reasonable excuse to leave one’s home or to travel beyond a geographical restriction is necessary both within regulations and in terms of Government communication on the content of regulations. We consider a degree of discretion should be included but the parameters of that discretion need to be more clearly defined. ICCL supports IHREC’s suggestion of a separate provision allowing travel for urgent and compelling cases.

Travel to an airport or port: Restrictions on leaving one’s place of residence to travel to an airport or port for the purpose of leaving the State without a reasonable excuse were introduced in 2021.238 This was a penal provision, carrying fines. As discussed in the section on legal framework and enforcement above, ICCL has consistently expressed its opposition to an over reliance on criminal enforcement of public health restrictions, calling instead for a response in line with recommendations by behavioural psychologists

that included clearer and targeted communication and better supports for those struggling to comply with restrictions.

237 IHREC, Ireland’s Emergency Powers during the Covid-19 pandemic, 24 February 2021, p. 76.238 SI No. 29 of 2021.

6.3 Recommendations

FOR THE GOVERNMENT:

1. Ensure that restrictions on human rights, especially penal provisions, are defined with sufficient clarity, such as in relation to the use of the term “reasonable excuse”.


3. Where there are geographical restrictions to the right to movement, a targeted approach linked with numbers of cases should be applied to ensure that the interference with the right to movement is the most minimal possible and the interference is demonstrably necessary and proportionate to the aim of protecting public health.



IMPACT OF THE COVID-19 RESPONSE ON THE RIGHT TO

LIBERTY

7




IMPACT OF THE COVID-19 RESPONSE ON THE RIGHT TO

LIBERTY

7




7. Impact of Covid-19 response on the right to liberty7.1 Legal framework – Right to libertyThe right to liberty is an essential human right, key to the rule of law. The right to liberty and freedom from arbitrary detention is enshrined in the Irish Constitution239 and protected by the ECHR240 and the EU Charter of Fundamental Rights.241

Constitutional and human rights law highlight that detention must be lawful, “in accordance with a procedure prescribed by law.”242 The right to liberty encompasses the right of someone deprived of their liberty to bring proceedings before a court in order to challenge the legality of their detention.243 The European Court of Human Rights have previously stated that “where deprivation of liberty is at stake, the interests of justice in principle call for legal representation.”244 The Irish courts have also found that where involuntary detention arises outside of the context of serving a period of imprisonment, “there must be available a speedy, effective and periodic system of review...Fair procedures must be observed.”245

7.2 Impact of the Covid-19 response on the right to libertyCovid-19 restrictions have had an impact on the right to liberty. This sub-section focuses on detention on mental health grounds and on mandatory hotel quarantine, as these are areas in which ICCL has conducted advocacy.

(i) Detention on mental health groundsThe Mental Health Act 2001 was amended in March 2020 to provide for emergency measures in response to Covid-19.246 The amendments are outlined in Part

5 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 and allowed for changes to the process for reviewing detention by a Mental Health Tribunal.

It permits an independent examination by any consultant psychiatrist who is not treating the patient and not just those on its designated panel. The independent consultant psychiatrist may examine a patient “in person”, “by other appropriate means”, or if they are “unable, due to the exigencies of the public health emergency, to carry out an examination” they should set out the reasons for this in their report.247 It also permits the appointment of a Mental Health Tribunal consisting of one member who must be a practising barrister or solicitor with at least 7 years’ experience if necessary, instead of the usual three person Tribunal.248 IHREC has highlighted how:

“these measures have the potential to infringe the requirement for an independent hearing highlighted by the High Court and Court of Appeal. The courts have stressed that the Oireachtas must be particularly careful in depriving those with mental illness of their liberty, and strong safeguards are necessary.”249

The amendments also remove other key procedural safeguards. The revised Act allows a Tribunal to receive submissions in writing as opposed to having the patient present at a live hearing.250 Ordinarily, the person detained has the right to be present at a Tribunal hearing and to make representations including through a legal representative.251 A Tribunal must make a decision within 21 days of the admission or renewal order. This period can be extended for 14 days on the Tribunal or the patient’s request and for a further 14 days beyond that on the patient’s request.252 However, the amendments enable the Tribunal to extend an involuntary order by a second 14 day period if the Tribunal “having due regard to the interest of the patient, is satisfied that it is necessary due to the exigences of the public health emergency”.253

239 Constitution of Ireland, article 40.4.1 (“No citizen shall be deprived of his personal liberty save in accordance with law”).240 ECHR, Article 5.241 Charter of Fundamental Rights of the European Union, Article 9.242 ECHR, Article 5(1).243 UN General Assembly, Report of the Working Group on Arbitrary Detention, 24 December 2012, A/HRC/22/44, para. 47.244 Benham v. United Kingdom (1996) 22 E.H.R.R. 293, para. 61.245 AM v. Health Service Executive [2019] IESC 3 (MacMenamin J.).246 Emergency Measures in the Public Interest (Covid-19) Act 2020 (Act 2 of 2020).247 Mental Health Act 2001, s. 17.248 Mental Health Act 2001, s. 48.249 IHREC, Ireland’s Emergency Powers during the Covid-19 Pandemic, 2021, p. 73.250 Mental Health Act 2001, s. 49.251 Mental Health Act 2001, s. 49.252 Mental Health Act 2001, s. 18(4).253 Mental Health Act 2001, s. 18.

https://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/A.HRC.22.44_en.pdf

https://www.oireachtas.ie/en/bills/bill/2020/4/



ICCL understands the need for adjustments in practice to minimise the spread of Covid-19 and to account for the availability of consultant psychiatrists, especially given the re-assignment of health workers to working on the Covid-19 response. However, ICCL has consistently raised concerns about these amendments as they have eroded key procedural safeguards relating to the detention of patients, as described above.254

Further, while there was an initial sunset clause of 9 November 2020 applicable to these amendments to the Mental Health Act, the Oireachtas approved an extension, following a controversial process, until 9 June 2021.255

IHREC has also raised concerns about these amendments and measures and highlighted they may be unconstitutional, in addition to violating human rights law.256 ICCL recommends the immediate repeal of Part 5 of the Emergency Measures in the Public Interest (Covid-19) Act 2020.257

(ii) Mandatory hotel quarantineFrom early in the pandemic, public health guidelines required all those travelling into Ireland to self-isolate for 14 days. The requirement was not based in law though in June 2020 a legal requirement that all travellers must fill out a Passenger Locator Form was introduced. It became an offence not to fill out a form or to fill it out with incorrect details. ICCL called for clear data protection safeguards for information gathered.258

ICCL opposed the introduction of mandatory hotel quarantine when it was first proposed in the summer of 2020. However, in January 2021, at a time when Covid-19 cases seemed to be rising exponentially and serious concerns about the introduction of new strains were raised by many, ICCL contacted members of the Oireachtas to call for the highest standard of human rights protections should mandatory hotel quarantine be introduced.259 We identified mandatory quarantine as a form of detention and called for robust safeguards if any such system was introduced, including inspections, review and appeals.

On 26 March 2021, mandatory hotel quarantine

became a legal requirement for those entering Ireland from so-called “designated States”. Persons travelling into Ireland from designated States are required to pre-book a place in a designated facility, must remain there for 14 days (unless they receive a negative COVID-19 test after 10 days) and must also pay for their stay in the facility, costing €1875 for a single adult.260

Designated States are to be decided by the Minister for Health. The criteria for designating States is “where there is known to be sustained human transmission of COVID-19 or any variant of concern or from which there is a high risk of importation of infection or contamination with Covid-19 or any variant of concern by travel from that State.”261 As discussed further below, ICCL has written to Government expressing concern that this criteria is not being applied consistently.

Mandatory hotel quarantine amounts to detention: Mandatory hotel quarantine constitutes a form of deprivation of liberty and is a form of State detention. Persons who travel into Ireland from designated States must make a booking to stay in a designated facility before their arrival; failure to do so is a criminal offence. Upon arrival into the country, persons are escorted by the Gardaí, Army or other authorised person to their designated facility. They are not permitted to leave this facility, except for a number of defined reasons which are set out in the Act, such as where a medical emergency arises. In cases where a person is authorised to leave, they must return within a specified period of time. Failing to return to the designated facility or leaving for any other reason will result in contact being made with the Gardaí. The Gardaí are then empowered to locate the person, detain them and return them to the facility.

Given that mandatory hotel quarantine is a form of detention, the State must meet the highest standards of care for those within quarantine. There must be a rigorous review, appeals process and inspections. ICCL is concerned that the current system does not meet these standards and may constitute a disproportionate interference with the right to liberty.

254 ICCL, Explanatory Note on the Emergency Measures in the Public Interest Bill 2020, 2020. ICCL, Monitoring human rights during the pandemic, Update 2.

255 Emergency Measures in the Public Interest (Covid-19) Act 2020 s. 1(3). See IHREC, Ireland’s Emergency Powers during the Covid-19 Pandemic, 2021, p. 27.

256 IHREC, Ireland’s Emergency Powers during the Covid-19 Pandemic, 2021, pp. 73-74.257 IHREC, Ireland’s Emergency Powers during the Covid-19 Pandemic, 2021, p. 74.258 Vivienne Clarke, Irish Council for Civil Liberties calls for safeguards in mandatory location forms, Irish Examiner, 28 May 2020.259 ICCL Briefing on Health (Amendment) Bill, 25 February 2021. 260 Department of Health, Mandatory hotel quarantine: your questions answered, 23 March 2021.261 Health Act 1947, s. 38E.

https://www.iccl.ie/wp-content/uploads/2020/03/ICCL-Explanatory-Note-on-Emergency-Measures-in-the-Public-Interest.pdf







https://www.iccl.ie/wp-content/uploads/2021/02/210225-ICCL-Briefing-on-Health-Amendment-Act-2021.pdf


ICCL understands the need for adjustments in practice to minimise the spread of Covid-19 and to account for the availability of consultant psychiatrists, especially given the re-assignment of health workers to working on the Covid-19 response. However, ICCL has consistently raised concerns about these amendments as they have eroded key procedural safeguards relating to the detention of patients, as described above.254

Further, while there was an initial sunset clause of 9 November 2020 applicable to these amendments to the Mental Health Act, the Oireachtas approved an extension, following a controversial process, until 9 June 2021.255

IHREC has also raised concerns about these amendments and measures and highlighted they may be unconstitutional, in addition to violating human rights law.256 ICCL recommends the immediate repeal of Part 5 of the Emergency Measures in the Public Interest (Covid-19) Act 2020.257

(ii) Mandatory hotel quarantineFrom early in the pandemic, public health guidelines required all those travelling into Ireland to self-isolate for 14 days. The requirement was not based in law though in June 2020 a legal requirement that all travellers must fill out a Passenger Locator Form was introduced. It became an offence not to fill out a form or to fill it out with incorrect details. ICCL called for clear data protection safeguards for information gathered.258

ICCL opposed the introduction of mandatory hotel quarantine when it was first proposed in the summer of 2020. However, in January 2021, at a time when Covid-19 cases seemed to be rising exponentially and serious concerns about the introduction of new strains were raised by many, ICCL contacted members of the Oireachtas to call for the highest standard of human rights protections should mandatory hotel quarantine be introduced.259 We identified mandatory quarantine as a form of detention and called for robust safeguards if any such system was introduced, including inspections, review and appeals.

On 26 March 2021, mandatory hotel quarantine

became a legal requirement for those entering Ireland from so-called “designated States”. Persons travelling into Ireland from designated States are required to pre-book a place in a designated facility, must remain there for 14 days (unless they receive a negative COVID-19 test after 10 days) and must also pay for their stay in the facility, costing €1875 for a single adult.260

Designated States are to be decided by the Minister for Health. The criteria for designating States is “where there is known to be sustained human transmission of COVID-19 or any variant of concern or from which there is a high risk of importation of infection or contamination with Covid-19 or any variant of concern by travel from that State.”261 As discussed further below, ICCL has written to Government expressing concern that this criteria is not being applied consistently.

Mandatory hotel quarantine amounts to detention: Mandatory hotel quarantine constitutes a form of deprivation of liberty and is a form of State detention. Persons who travel into Ireland from designated States must make a booking to stay in a designated facility before their arrival; failure to do so is a criminal offence. Upon arrival into the country, persons are escorted by the Gardaí, Army or other authorised person to their designated facility. They are not permitted to leave this facility, except for a number of defined reasons which are set out in the Act, such as where a medical emergency arises. In cases where a person is authorised to leave, they must return within a specified period of time. Failing to return to the designated facility or leaving for any other reason will result in contact being made with the Gardaí. The Gardaí are then empowered to locate the person, detain them and return them to the facility.

Given that mandatory hotel quarantine is a form of detention, the State must meet the highest standards of care for those within quarantine. There must be a rigorous review, appeals process and inspections. ICCL is concerned that the current system does not meet these standards and may constitute a disproportionate interference with the right to liberty.

254 ICCL, Explanatory Note on the Emergency Measures in the Public Interest Bill 2020, 2020. ICCL, Monitoring human rights during the pandemic, Update 2.

255 Emergency Measures in the Public Interest (Covid-19) Act 2020 s. 1(3). See IHREC, Ireland’s Emergency Powers during the Covid-19 Pandemic, 2021, p. 27.

256 IHREC, Ireland’s Emergency Powers during the Covid-19 Pandemic, 2021, pp. 73-74.257 IHREC, Ireland’s Emergency Powers during the Covid-19 Pandemic, 2021, p. 74.258 Vivienne Clarke, Irish Council for Civil Liberties calls for safeguards in mandatory location forms, Irish Examiner, 28 May 2020.259 ICCL Briefing on Health (Amendment) Bill, 25 February 2021. 260 Department of Health, Mandatory hotel quarantine: your questions answered, 23 March 2021.261 Health Act 1947, s. 38E.


We have called for the system to end unless these rights standards are met.262

Proportionality: Mandatory quarantine must be proportionate to the aim of protecting public health. A proportionality assessment takes on particular importance in the context of detention. Any form of detention must impinge on the right to liberty as little as possible. ICCL considers that requiring all persons (with limited exemptions) travelling in from designated States to submit to mandatory hotel quarantine may be disproportionate to the aim of protecting the right to life and health of the public. Government should consider further, clearer categories of exemptions and, as discussed further below, must strengthen the system’s review and appeals process. Clear data connecting mandatory hotel quarantine with the public health situation must be regularly published.

The State must always ensure that detention is a last resort and that no other measures would satisfy the aim sought to be achieved by detention.263 It is not clear that the Government exhausted all options before adopting mandatory hotel quarantine into Irish law, for example, implementing a more robust system of testing and tracing of contacts and regular checks on individuals quarantining in their place of residence, as have been introduced in jurisdictions such as the UK.264

The Act requires those travelling from non-designated States to provide evidence of a negative PCR test on arrival. Those travelling from non-designated States who do not have such evidence can be detained in a designated facility, however, the crucial difference is that these individuals are then assessed by a medical officer who will determine whether or not that person can effectively self-isolate from home. This individualised approach is far more proportionate than that prescribed for those travelling from non-designated States.

The Act also lacks proportionality by virtue of the period of designated mandatory hotel quarantine being prescribed as 14 days. The ECDC have recommended that a PCR test from individuals

prior to departure and upon arrival coupled with a COVID-19 test 5-7 days after arrival is the most effective way to tackle the spread of COVID-19 whilst also reducing the period of time for quarantine from 14 days to 5-7 days265. The Government has adopted the strictest approach to the quarantine period. This may be disproportionate and is unlikely to satisfy the requirement to infringe on personal rights and the right to liberty as minimally as possible.

Insufficient appeals process: The appeals process provided for in the Health Act is a paper-based review which must fall into one of the grounds in the Act, including (a) medical or other exceptional reasons, including the necessity of providing care for any vulnerable person or (b) urgent humanitarian grounds.266

Persons who appeal their detention are not entitled to legal representation or an oral hearing at which they can contest their detention. Moreover, it is clear that the appeals process is deeply flawed and applications are not being assessed in accordance with the criteria contained within the Act. For example, a man who flew in from Israel to be with his dying father (who was in intensive care and was expected to die shortly) was denied two appeals for an exemption on humanitarian grounds.267 There have been a number of similar instances where the review process has insufficiently taken account of humanitarian grounds, such as the case of one woman who, whilst being detained in a hotel, received a call to say her father had died suddenly in Argentina. Her appeal to fly back to Argentina urgently for the funeral and to care for her mother was refused.268

Arbitrary and unclear designation of States:

It is a fundamental requirement of human rights law that detention must never be arbitrary. The manner in which States have been designated as requiring mandatory hotel quarantine raises concerns as to arbitrariness and lack of clarity.

First, although the Act sets out clear criteria for the Minister for Health in designating a State for

262 ICCL Press Release, ICCL calls for end to mandatory quarantine if rights issues not addressed, 19 April 2021.263 McCann v. Monaghan District Judge [2009] 4 I.R. 200, para. 70.264 Department of Health and Social Care, Government to introduce tougher measures and enforcement rules for quarantined passengers,

9 February 2021.265 ECDC, ‘Guidance for COVID-19 quarantine and testing of travellers’, 12 March 2021.266 Health Act 1947, s. 38E(16).267 Orla O’Donnell, Son of dying man released from hotel quarantine, RTE, 11 April 2021.268 Amy Molloy, ’I am so broken’ – woman whose father died on day she entered hotel quarantine refused permission to travel home to Argentina,

Irish Independent, 26 April 2021.269 Health Act 1947 (as amended), s.38E(3)(c)

https://www.iccl.ie/news/iccl-calls-for-end-to-mandatory-quarantine-if-rights-issues-not-addressed/

https://www.gov.uk/government/news/government-to-introduce-tougher-measures-and-enforcement-rules-for-quarantined-passengers

https://www.ecdc.europa.eu/sites/default/files/documents/Guidance-for-COVID-19-quarantine-and-testing-for%20travellers.pdf

https://www.rte.ie/news/coronavirus/2021/0411/1209125-court-quarantine/

https://www.independent.ie/world-news/coronavirus/i-am-so-broken-woman-whose-father-died-on-day-she-entered-hotel-quarantine-refused-permission-to-travel-home-to-argentina-40358222.html


mandatory hotel quarantine, the Act also provides that the Minister shall consult with the Minister for Foreign Affairs and other Government ministers269. This blurs the lines between clear scientific criteria and political considerations.

Second, the current process for designation of States lacks sufficient clarity and transparency. The Minister for Health has on numerous occasions been advised by the Expert Advisory Group on Travel to place certain countries into the “designated States” category and has failed to do so without any clear reason as to why270. The arbitrary nature can be demonstrated by the placing of Israel onto the list of designated States on 5 April 2021. At that time, Israel’s 14-day incidence rate per 100,000 was 58. The equivalent incidence rate in Ireland on the same date was 157.1. Countries such as France and the USA were recommended by the Expert Advisory Group to be categorised as designated States at the end of March and again at the beginning of April271. They were not categorised as designated States until the 15 April 2020.272

Finally, certain countries which have higher incidence rates of COVID-19 than Ireland and/or have variants of concern have still not been placed on the list of designated States273. There is inconsistency in the approach taken to designate certain States for mandatory hotel quarantine. For example, recent data from the ECDC indicates that the Netherlands and Lithuania have a higher incidence rate of COVID-19 than Belgium and France, yet Belgium and France are on the list of designated States and Netherlands and Lithuania are not274. Similarly, the UK has consistently been named by the ECDC as being a country with variants of concern and variants of interest, however the UK is not now and has not previously been designated as a State requiring mandatory hotel quarantine275.

If the designation of States is arbitrary, then it follows that the detention of individuals arriving from these arbitrarily designated States may also be arbitrary.

Ireland has strong constitutional protections for individual liberty, in addition to the protections in the ECHR and international human rights treaties. The detention of persons by the State must adhere to very strict rules in order not to fall foul of these protections. In its current form, ICCL considers that mandatory hotel quarantine fails to meet these standards and encroaches unnecessarily on the right to liberty.

Exemptions to mandatory hotel quarantine: Following pressure from civil society groups including ICCL, as well as a number of High Court challenges and significant adverse media coverage, the Government introduced two further categories of people who are now exempt from mandatory hotel quarantine; those who are fully vaccinated and those have travelled abroad for “unavoidable, imperative and time-sensitive medical reasons.” ICCL considers that humanitarian exemptions, which are provided for in the legislation, should be applied in a more expansive and compassionate manner.

The exemption for fully vaccinated people is limited to those who have received an EU-approved vaccine, those being the Pfizer, Moderna, Astra-Zeneca or Johnson & Johnson vaccines. This raises concern from a discrimination perspective given the limited availability of these vaccines worldwide.

270 Christina Finn and Daragh Brophy, Government advised to add US, France, Germany and Italy to hotel quarantine list, The Journal, 30 March 2021; Stephen McDermott, Hotel quarantine: Why is Austria on Ireland’s list of ‘designated countries’ but not France and Germany?, 7 April 2021.


272 US, France, Italy, Canada and 12 other countries added to hotel quarantine list, Breaking News, 9 April 2021273 See ECDC, COVID-19 Country Overviews, published weekly. As can be seen from data dated 16 May 2021, a number of countries in the EU have

far higher incidence rates than Ireland but have still not been placed on the list of designated states for MHQ.274 ECDC, COVID-19 Country Overviews, weekly report, last accessed 16 May 2021.275 ECDC, COVID-19 Country Overviews, weekly report, last accessed 16 May 2021.

https://www.thejournal.ie/hotel-quarantine-list-ireland-more-countries-added-us-france-germany-italy-5395771-Mar2021/

https://www.thejournal.ie/hotel-quarantine-ireland-austria-designated-list-5401683-Apr2021/

https://www.thejournal.ie/hotel-quarantine-list-ireland-more-countries-added-us-france-germany-italy-5395771-Mar2021/

https://www.thejournal.ie/hotel-quarantine-ireland-austria-designated-list-5401683-Apr2021/

https://www.breakingnews.ie/ireland/cabinet-meeting-tonight-to-consider-adding-countries-to-quarantine-list-1109170.html

https://covid19-country-overviews.ecdc.europa.eu/




mandatory hotel quarantine, the Act also provides that the Minister shall consult with the Minister for Foreign Affairs and other Government ministers269. This blurs the lines between clear scientific criteria and political considerations.

Second, the current process for designation of States lacks sufficient clarity and transparency. The Minister for Health has on numerous occasions been advised by the Expert Advisory Group on Travel to place certain countries into the “designated States” category and has failed to do so without any clear reason as to why270. The arbitrary nature can be demonstrated by the placing of Israel onto the list of designated States on 5 April 2021. At that time, Israel’s 14-day incidence rate per 100,000 was 58. The equivalent incidence rate in Ireland on the same date was 157.1. Countries such as France and the USA were recommended by the Expert Advisory Group to be categorised as designated States at the end of March and again at the beginning of April271. They were not categorised as designated States until the 15 April 2020.272

Finally, certain countries which have higher incidence rates of COVID-19 than Ireland and/or have variants of concern have still not been placed on the list of designated States273. There is inconsistency in the approach taken to designate certain States for mandatory hotel quarantine. For example, recent data from the ECDC indicates that the Netherlands and Lithuania have a higher incidence rate of COVID-19 than Belgium and France, yet Belgium and France are on the list of designated States and Netherlands and Lithuania are not274. Similarly, the UK has consistently been named by the ECDC as being a country with variants of concern and variants of interest, however the UK is not now and has not previously been designated as a State requiring mandatory hotel quarantine275.

If the designation of States is arbitrary, then it follows that the detention of individuals arriving from these arbitrarily designated States may also be arbitrary.

Ireland has strong constitutional protections for individual liberty, in addition to the protections in the ECHR and international human rights treaties. The detention of persons by the State must adhere to very strict rules in order not to fall foul of these protections. In its current form, ICCL considers that mandatory hotel quarantine fails to meet these standards and encroaches unnecessarily on the right to liberty.

Exemptions to mandatory hotel quarantine: Following pressure from civil society groups including ICCL, as well as a number of High Court challenges and significant adverse media coverage, the Government introduced two further categories of people who are now exempt from mandatory hotel quarantine; those who are fully vaccinated and those have travelled abroad for “unavoidable, imperative and time-sensitive medical reasons.” ICCL considers that humanitarian exemptions, which are provided for in the legislation, should be applied in a more expansive and compassionate manner.

The exemption for fully vaccinated people is limited to those who have received an EU-approved vaccine, those being the Pfizer, Moderna, Astra-Zeneca or Johnson & Johnson vaccines. This raises concern from a discrimination perspective given the limited availability of these vaccines worldwide.



272 US, France, Italy, Canada and 12 other countries added to hotel quarantine list, Breaking News, 9 April 2021273 See ECDC, COVID-19 Country Overviews, published weekly. As can be seen from data dated 16 May 2021, a number of countries in the EU have

far higher incidence rates than Ireland but have still not been placed on the list of designated states for MHQ.274 ECDC, COVID-19 Country Overviews, weekly report, last accessed 16 May 2021.275 ECDC, COVID-19 Country Overviews, weekly report, last accessed 16 May 2021.


FOR THE GOVERNMENT REGARDING MANDATORY HOTEL QUARANTINE:

4. End mandatory hotel quarantine in Ireland as soon as public health advice permits, ensuring that the requirement to quarantine is directly connected to scientific data on cases of Covid-19.

5. Ensure legislation on mandatory hotel quarantine is reviewed extensively with a focus on ensuring its compatibility with human rights law, if it is to be renewed beyond its current sunset clause.

6. While mandatory hotel quarantine remains in place: a. Ensure that all people entering mandatory

hotel quarantine are given a physical and mental health medical review and all necessary medical treatments, supports or interventions are provided.

b. Implement a system of effective and transparent review before people must enter mandatory hotel quarantine.

c. Implement an effective and transparent appeal process for all people subject to mandatory quarantine, including the right to an oral hearing with legal representation.

d. Ensure all places of mandatory hotel quarantine are subject to regular inspections to ensure conditions meet the standards for detention.

e. Ensure the designation of States is based on non-discriminatory, objective, transparent and foreseeable criteria that is based on up-to-date medical necessity.

7.3 Recommendations

FOR THE GOVERNMENT REGARDING THE MENTAL HEALTH ACT:

1. Repeal Part 5 of the Emergency Measures in the Public Interest (Covid-19) Act 2020.

2. If Part 5 is not immediately repealed, ensure that patients are assisted in making written submissions, where that is the form of patient representations to the Tribunal, including by a legal representative.

3. Ensure that more than one member of the Tribunal is sitting and hears these cases and Tribunals do not resort to a one person Tribunal, except in the most exceptional cases and where there is a clear need for the Tribunal to operate in this manner.




TO PRIVACY AND DATA

PROTECTION

8






TO PRIVACY AND DATA

PROTECTION

8




8. Impact of Covid-19 response on the right to privacy and data protection8.1 Legal framework – Right to privacy and data protectionPrivacy is a fundamental human right protected by the Irish Constitution276 and the ECHR277. It is central to the maintenance of democratic societies and it reinforces other rights, such as freedom of expression278, the right to send and receive information279, data protection rights,280 the right to freedom of association281 and the right to freedom of thought, conscience and belief.282 It is known as a bedrock right, because so many other rights depend on it.

Tracking technologies raise significant human rights concerns, in particular regarding the right to privacy and data protection. Where the Government seeks to use technology in response to the pandemic, it must ensure that any interference with the right to privacy is necessary and proportionate to the aim of protecting public health. Crucially, they must also show such tools are effective in order to pass the tests of necessity and proportionality.

8.2 Impact of tracking technologies on the right to privacy and data protectionSince the beginning of the pandemic, new tracking technologies with sweeping surveillance capabilities have been rolled out in different jurisdictions across the world, including Ireland. These include contact-

tracing apps,283 quarantine apps with facial recognition technology,284 drones285 and electronic bracelets286.

This sub-section discusses the CovidTracker app, airport checks and the pandemic unemployment payment, and Covid-19 passports/vaccine certificates.

(i) CovidTracker appIn late March 2020, it emerged in media reports that the Health Service Executive (HSE) was planning to roll out a Covid-19 “tracking and tracing” app to assist contact-tracing in Ireland.287 ICCL advocated for an app that would respect the rule of law and human rights norms and successfully lobbied for Ireland’s app to be a decentralised app. A decentralised approach is more preferable than a centralised approach as it means less data is collected in one place, and the app therefore potentially poses less of an interference to privacy.

ICCL and other privacy campaigners called on the Irish health authorities to publish the app’s Data Protection Impact Assessment.288 We also called on the health authorities to follow international best practice and to publish the app’s design specifications and source code ahead of its launch to allow for independent scrutiny. We created a principled framework for the Government and legislators intent on deploying any tech solution as part of a public policy.289 The Department of Health later told the Special Committee on Covid-19 that it was confident these principles had been observed290.

ICCL eventually gave the app a C+ for transparency and privacy. However, our colleagues, Dr Stephen Farrell and Professor Doug Leith at TCD, raised concerns about its potential effectiveness291 and we gave it a D on this issue. This is significant for the Government as it

276 Constitution of Ireland, Article 40.3.1.277 ECHR, article 8 ((1) “Everyone has the right to respect for his private and family life, his home and his correspondence. (2) “There shall be no

interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”).

278 Constitution of Ireland, article 40.6.1.i (“The right of the citizens to express freely their convictions and opinions”).279 ECHR, article 10 (Includes the right “to receive and impart information and ideas without interference by public authority and regardless of frontiers”).280 European Charter of Fundamental Rights of the European Union, Article 8.281 European Charter of Fundamental Rights of the European Union, Article 12.282 European Charter of Fundamental Rights of the European Union, Article 10.283 MIT Technology Review, Why some countries suspended, replaced, or relaunched their covid apps, 23 December, 2020.284 Home Quarantine System, Hungary, Google Play.285 Westport Police to test ‘pandemic drone’ that can sense fevers, coughing, NBC Connecticut, 23 April 2020.286 Lonely Planet, Travelers arriving in Abu Dhabi must now wear quarantine tracking bracelets, 21 September 2020.287 Business Post, Phone tracking app set to be used as next step to fight Covid-19, 29 March 2020.288 Irish Council for Civil Liberties, HSE app: experts and public need to see details, 29 April 2020.289 Irish Council for Civil Liberties, Principles for legislators on the implementation of new technologies, 3 June 2020.290 Special Committee on Covid-19 Response debate, Covid-19 Testing and Tracing, June 25, 2020. See also, Irish Council for Civil Liberties and

Digital Rights Ireland, Submission to the Special Committee on COVID-19 Response on the HSE/ Department of Health’s COVID-19 contact-tracing/symptom-tracking app and contact tracing, 16 June 2020.

291 Dr Stephen Farrell and Professor Doug Leith, Submission to the Special Committee on Covid-19 Response on the topic of Covid-19 Testing and Contact Tracing, 16 June 2020.

https://www.technologyreview.com/2020/12/23/1015557/covid-apps-contact-tracing-suspended-replaced-or-relaunched/

https://play.google.com/store/apps/details?id=com.hkr&hl=en&gl=US

https://www.nbcconnecticut.com/news/local/westport-police-to-test-pandemic-drone-that-can-sense-fevers-coughing/2258746/

https://www.lonelyplanet.com/articles/etihad-tracking-bracelets-quarantine

https://www.businesspost.ie/health/phone-tracking-app-set-to-be-used-as-next-step-to-fight-covid-19-f0ebedaf

https://www.iccl.ie/news/hse-app-experts-and-public-need-to-see-details/

https://www.iccl.ie/wp-content/uploads/2020/06/Principles-for-legislators-on-the-implementation-of-new-technologies.pdf

https://www.oireachtas.ie/en/debates/debate/special_committee_on_covid_19_response/2020-06-25/2/

https://www.iccl.ie/wp-content/uploads/2020/06/DRI-ICCL-COVID-19-app-Oireachtas-submission.pdf

https://www.iccl.ie/wp-content/uploads/2020/06/DRI-ICCL-COVID-19-app-Oireachtas-submission.pdf

https://down.dsg.cs.tcd.ie/tact/oireachtas-submission.pdf

https://down.dsg.cs.tcd.ie/tact/oireachtas-submission.pdf


292 Department of Social Protection, Covid-19 Pandemic Unemployment Payment, 2020.293 Charter of Fundamental Rights of the European Union, Article 21.294 Business Post, Unemployed to lose payments if caught travelling abroad, 26 July 2020.295 ICCL, ‘Serious Privacy and Data Harvesting Concerns about Technology Underlying HSE App’ 21 July 2020.296 Garreth McNamee, The Journal, 104 people have had their Pandemic Unemployment Payment stopped because of travel, July 26, 2021.

has to prove that any infringements on privacy actually achieve the goal they aim to achieve. ICCL, along with Dr Farrell and Professor Leith, later raised serious concerns for Android users of the app as they must have Google Play Services turned on for the app to work and Google Play Services sends highly sensitive personal data to Google in order for the app to work.

According to the app itself, there are currently 1.3million active users. At the time of writing, the app also states 15,473 users who have tested positive have uploaded their Random IDs; and this has led to 24,164 users getting a close contact alert. It is not known how many people who got a close contact alert subsequently tested positive. Neither is it known if the people who later tested positive could have been traced by any other means and/or if they were traced more quickly by the app than by human contact-tracing. The app’s false positive figure is also unknown. ICCL has sought statistics and figures about the efficacy of the app. Efficacy is crucial when one considers the human rights implications of any technological tool in a public health context because the necessity and proportionality of a technological tool is contingent on its effectiveness.

We have ongoing concerns about the efficacy of the app; without evidence that the app is effective, the project fails the rights test of necessity and proportionality. The encroachment on our privacy may be disproportionate or unnecessary. The authorities must urgently publish data on the app’s efficacy and how and when it will be wound up. The use of the contact-tracing elements of the app should be discontinued if their efficacy cannot be proven. Minutes of the App Advisory Committee tasked with overseeing the app should be made public to increase transparency on the operation and functioning of the app.

(ii) Covid-19 Pandemic Unemployment Payments and airport checksFrom March 2020, Government made provision for an additional social welfare payment, known as the

Pandemic Unemployment Payment, (PUP), to be made available for those who could not work due to the pandemic.292 There was no requirement that recipients needed to be seeking work in order to claim this payment.

During the summer of 2020, it emerged that some people’s social welfare payments had been stopped or paused without a clear legal basis. It later appeared that the Department of Social Protection had been carrying out checks on whether particular individuals due to travel abroad were claiming the PUP. The revelations raised serious questions about the transfer of personal data between Government departments and agencies; and infringements on people’s right to privacy, data protection rights, and the right to non-discrimination.293

Discriminatory punishment for travel:

These legally suspect checks on individuals raised serious questions about racial profiling. The Department of Social Welfare airport checks were primarily focused on flights to eastern Europe. At the time of writing, it is still unclear what the purported legal basis was for the questioning of certain people and the subsequent cuts to social welfare payments.

On 26 July 2020, it emerged that over the previous two weeks 104 people294 had their PUP stopped “because they were found to be boarding a flight abroad in breach of rules”, while another 44 people had “other social welfare payments such as jobseeker’s allowance cut off” due to airport checks. At the time, people were advised against “all non-essential overseas travel”. In effect, the State introduced penalties for going abroad for one cohort of the population, but not others. ICCL highlighted the discriminatory nature of this punishment, which particularly affected immigrants.295

Questions about lawfulness: It only then emerged that the Minister for Social Protection, Heather Humphreys, had signed a statutory instrument on 10 July 2020 which meant that anyone in receipt of the PUP who went abroad would only be able to continue receiving the payment if they followed the Government’s travel advice.296 There was no public announcement made about this change so it is unclear

"ICCL eventually gave the app a C+ for transparency and privacy."

https://www.gov.ie/en/service/be74d3-covid-19-pandemic-unemployment-payment/

https://www.businesspost.ie/ireland/unemployed-to-lose-payments-if-caught-travelling-abroad-34daa628

https://www.iccl.ie/news/serious-privacy-and-data-harvesting-concerns-about-technology-underlying-hse-app/


292 Department of Social Protection, Covid-19 Pandemic Unemployment Payment, 2020.293 Charter of Fundamental Rights of the European Union, Article 21.294 Business Post, Unemployed to lose payments if caught travelling abroad, 26 July 2020.295 ICCL, ‘Serious Privacy and Data Harvesting Concerns about Technology Underlying HSE App’ 21 July 2020.296 Garreth McNamee, The Journal, 104 people have had their Pandemic Unemployment Payment stopped because of travel, July 26, 2021.

has to prove that any infringements on privacy actually achieve the goal they aim to achieve. ICCL, along with Dr Farrell and Professor Leith, later raised serious concerns for Android users of the app as they must have Google Play Services turned on for the app to work and Google Play Services sends highly sensitive personal data to Google in order for the app to work.

According to the app itself, there are currently 1.3million active users. At the time of writing, the app also states 15,473 users who have tested positive have uploaded their Random IDs; and this has led to 24,164 users getting a close contact alert. It is not known how many people who got a close contact alert subsequently tested positive. Neither is it known if the people who later tested positive could have been traced by any other means and/or if they were traced more quickly by the app than by human contact-tracing. The app’s false positive figure is also unknown. ICCL has sought statistics and figures about the efficacy of the app. Efficacy is crucial when one considers the human rights implications of any technological tool in a public health context because the necessity and proportionality of a technological tool is contingent on its effectiveness.

We have ongoing concerns about the efficacy of the app; without evidence that the app is effective, the project fails the rights test of necessity and proportionality. The encroachment on our privacy may be disproportionate or unnecessary. The authorities must urgently publish data on the app’s efficacy and how and when it will be wound up. The use of the contact-tracing elements of the app should be discontinued if their efficacy cannot be proven. Minutes of the App Advisory Committee tasked with overseeing the app should be made public to increase transparency on the operation and functioning of the app.

(ii) Covid-19 Pandemic Unemployment Payments and airport checksFrom March 2020, Government made provision for an additional social welfare payment, known as the

Pandemic Unemployment Payment, (PUP), to be made available for those who could not work due to the pandemic.292 There was no requirement that recipients needed to be seeking work in order to claim this payment.

During the summer of 2020, it emerged that some people’s social welfare payments had been stopped or paused without a clear legal basis. It later appeared that the Department of Social Protection had been carrying out checks on whether particular individuals due to travel abroad were claiming the PUP. The revelations raised serious questions about the transfer of personal data between Government departments and agencies; and infringements on people’s right to privacy, data protection rights, and the right to non-discrimination.293

Discriminatory punishment for travel:

These legally suspect checks on individuals raised serious questions about racial profiling. The Department of Social Welfare airport checks were primarily focused on flights to eastern Europe. At the time of writing, it is still unclear what the purported legal basis was for the questioning of certain people and the subsequent cuts to social welfare payments.

On 26 July 2020, it emerged that over the previous two weeks 104 people294 had their PUP stopped “because they were found to be boarding a flight abroad in breach of rules”, while another 44 people had “other social welfare payments such as jobseeker’s allowance cut off” due to airport checks. At the time, people were advised against “all non-essential overseas travel”. In effect, the State introduced penalties for going abroad for one cohort of the population, but not others. ICCL highlighted the discriminatory nature of this punishment, which particularly affected immigrants.295

Questions about lawfulness: It only then emerged that the Minister for Social Protection, Heather Humphreys, had signed a statutory instrument on 10 July 2020 which meant that anyone in receipt of the PUP who went abroad would only be able to continue receiving the payment if they followed the Government’s travel advice.296 There was no public announcement made about this change so it is unclear

"ICCL eventually gave the app a C+ for transparency and privacy."


how members of the public could have accessed this information.

ICCL questioned the lawfulness of these actions.297 If a minister introduces a statutory instrument, they have to prove it is within the principles of a primary piece of legislation. There was no primary legislation concerning the Government’s travel advice given it was advice not law.

Questions about information sharing: A number of people contacted ICCL directly because their PUP had been cancelled or stopped, including one person who was booked to go abroad but never actually left the country. Following Tánaiste Leo Varadkar’s comments that airports provide information to the Department, and the Dublin Airport Authority’s consistent denial of sharing such information, ICCL raised serious questions: Where had this information come from? How was it lawfully obtained? How was it lawfully shared with the Department? Later, the Data Protection Commission released a statement saying it had serious doubts about the lawfulness of the collection and processing of personal data in the above context and that it was following the matter up with the Department.298

Law cannot be applied retrospectively: On 28 July 2020, the Social Welfare (Covid-19) (Amendment) Bill 2020299 was passed, obliging people in receipt of the PUP to be “genuinely seeking” employment in order to receive it.300 On the same day, Minister Humphries told the Dáil that since 13 March 2020, the DEASP had stopped payments to 2,500 recipients of the PUP, 2000 of which related to Dublin Airport and 500 to other ports and airports.301 However, the legislation could only affect payments on a prospective basis, i.e from the date it was signed into law. Therefore, anyone who had their payment stopped on an administrative basis, because they travelled abroad before the

legislation was signed into law could challenge that decision.302

The Minister subsequently announced that people could travel to green-listed countries if they were on the PUP, or other forms of unemployment assistance such as Jobseeker’s Benefit or Jobseeker’s Payment. However, anyone going to a non-green list country for non-essential reasons would still lose it.303 No equivalent penalties were introduced for people who were not in receipt of State supports. It has since emerged that a number of legal challenges have been brought by Irish-resident EU citizens after their PUP was cut as a result of them leaving the jurisdiction, some for family emergencies. Those proceedings were settled out of Court304.

The events concerning the Covid-19 PUP and the manner in which some recipients’ pay was cut raised, and continues to raise, serious concerns about infringements on people’s right to privacy, data protection, and non-discrimination.

(iii) Covid-19 passports/certificatesAny system which requires a person to be vaccinated before they can access services raises concerns about the right to privacy, bodily integrity, data protection, movement, and equality. Such systems would bestow an inherent unfair advantage on those who have a vaccine over those who do not. At a time when the world does not have universal, equitable and affordable access to vaccines for all, such a system could be regarded as discriminatory on a global scale. At a domestic level, it would create an inherently divisive two-tier society. It would raise profound questions about what is ethically acceptable when some people are awaiting a vaccine, or cannot have one for medical or other reasons, or are yet to be convinced of its benefits. Any such system would also

297 Liam Herrick, We should all be worried about the Government’s Social Welfare Travel Ban, Sunday Business Post, 28 July 2020. See also ICCL Your Rights in a Pandemic, Update 20, 25-30 July.

298 Jack Horgan-Jones, Data watchdog: ‘Doubts’ over whether welfare inspections at airports were lawful, July 30, 2021.299 Social Welfare (Covid-19) (Amendment) Act 2020.300 SI No. 242 of 2020.301 Dáil Debates, ‘Social Welfare (Covid-19) (Amendment) Bill 2020: Second Stage’, 28 July 2020.302 The Journal, Department Says 85 People Who Had Their PUP Stopped May be Entitled to It, 29 July 2020.303 Sean Murray, The Journal, Department Says 85 People who had their PUP cut may be entitled to it, 29 July 2020.304 Irish Examiner, EU national who travelled home challenges State’s decision to stop PUP payments, February 8, 2021.

The events concerning the Covid-19 PUP and the manner in which some recipients’ pay was cut raised, and continues to raise, serious concerns about infringements on people’s right to privacy, data protection, and non-discrimination.

https://www.businesspost.ie/columnists/comment-we-should-all-be-worried-about-the-governments-social-welfare-travel-ban-8e7d5cbd+



https://www.irishtimes.com/news/ireland/irish-news/data-watchdog-doubts-over-whether-welfare-inspections-at-airports-were-lawful-1.4317698

https://data.oireachtas.ie/ie/oireachtas/act/2020/12/eng/enacted/a1220.pdf

http://www.irishstatutebook.ie/eli/2020/si/242/made/en/print?q=social+welfare&years=2020&search_type=si

https://www.thejournal.ie/pup-humphreys-5162819-Jul2020/

https://www.thejournal.ie/pup-humphreys-5162819-Jul2020/

https://www.irishexaminer.com/news/courtandcrime/arid-40222748.html


raise concerns about the sharing of health data with third parties and the development of digital identity systems.

ICCL wrote to the Minister for Foreign Affairs and Minister for Health305 to raise concerns about vaccination passport systems, specifically raising these concerns. We suggested that there was a risk that such systems would lead to mandatory vaccination by the backdoor. From ICCL’s perspective, this would fundamentally reverse established Irish policy on voluntary vaccination and breach the HSE’s own Consent for Vaccination for Covid-19: Guiding Principles.306 We called for any use of such a system to be banned within Ireland.307

ICCL’s concerns about a domestic passport system were heightened after the Tánaiste said that the Government would introduce “more freedoms for those who have been vaccinated”308 and reports they would be used for sports events.309 However, the Government has since indicated that there would be no introduction of Covid passports at a domestic level.

At the time of writing, the Irish Government is currently working on implementing the European Commission’s proposed ‘Digital Green Certificate’, renamed the EU Covid-19 Certificate, to facilitate free movement in the European Union. The certificates are planned to indicate whether a person has been (i) vaccinated, (ii) tested negative, and/or (iii) recovered from Covid. The commission proposes that the certificate would not be a precondition for travel and free movement, a fundamental right in the EU.310

Although it is welcome that these optional certificates are not just concerned with vaccinations, it is unclear whether a certificate holder will be treated differently to a person who would rather present their vaccination card, a negative test result, or another means to show they have recovered from Covid-19. ICCL also supports key recommendations made by the Ada Lovelace Institute311 in respect of proposed certification systems including that certificates or passports should not be rolled out until there is scientific agreement about how they represent

‘lower risk’. They should have a clear, specific and delimited purpose. There should be clear, legal guidance on the permitted and restricted uses of the certificates, and mechanisms to support rights and redress and to tackle illegal use. Measures must be taken to safeguard against future risks and mitigation strategies for global harms such as the normalisation of individualised health risk scoring.

ICCL welcomes the Government’s clarification in correspondence with ICCL, and in public, that Ireland’s version of the EU Covid-19 Certificate will only be issued to those who want it and that there are no plans for any domestic vaccination certificate system312. However, ICCL notes that the European Data Protection Board and European Data Protection Supervisor have raised data protection concerns in respect of the European Commission’s proposal.313

305 ICCL, Letter to Minister for Foreign Affairs Simon Coveney and the Minister for Health Stephen Donnelly, March 18, 2021.306 One principle is: for informed consent to be valid, the person must not be acting under duress. HSE, Consent for Vaccination for Covid-19:

Guiding Principles.307 ICCL, Call for Government to ban vaccine passports within Ireland, 18 March, 2021.308 Vaccinated will be offered additional freedoms, says Varadkar, The Irish Times, April 6, 2021.309 Louise Byrne Vaccine certs being considered by Government for sports fans, Prime Time, RTE, April 9, 2021.310 Treaty on European Union (TEU), Article 3(2); Treaty on the Functioning of the European Union (TFEU), Article 21; Charter of Fundamental Rights

of the European Union, Article 45.311 Ada Lovelace Institute, Checkpoints for vaccine passports, 10 May 2021.312 Twitter, Minister of State with responsibility for Public Procurement eGovernment Ossian Smyth TD, 9 May, 2021.313 European Data Protection Board, EU data protection authorities adopt joint opinion on the Digital Green Certificate proposals, EDPD and EDPS,

April 6, 2021.

8.3 Recommendations

FOR THE HSE AND THE DEPARTMENT OF HEALTH:

1. Be transparent in all aspects of the continued roll out of the Covid app;

2. Publish all available data related to the efficacy of the symptom tracker part of the app and outline research methodology related to this data collection;

3. Publish details relating to the figures for the 14 metrics that the app has, reportedly, been collecting on both a daily and cumulative basis to date;

4. Regularly publish the minutes of the meetings of the App Advisory Committee;

5. Publish details relating to how and when use of the app will end.

https://www.iccl.ie/wp-content/uploads/2021/03/ICCL-letter-to-Foreign-Affairs-re-vaccine-passports.pdf

https://www.hse.ie/eng/health/immunisation/hcpinfo/covid19vaccineinfo4hps/consentprinciples.pdf

https://www.hse.ie/eng/health/immunisation/hcpinfo/covid19vaccineinfo4hps/consentprinciples.pdf

https://www.iccl.ie/news/call-for-government-to-ban-vaccine-passports-within-ireland/

https://www.irishtimes.com/news/health/vaccinated-will-be-offered-additional-freedoms-says-varadkar-1.4529990

https://www.rte.ie/news/primetime/2021/0408/1208696-vaccine-passports-crowds-stadiums-gaa/

https://www.adalovelaceinstitute.org/report/checkpoints-vaccine-passports/

https://twitter.com/smytho/status/1391331041785401348

https://edps.europa.eu/system/files/2021-04/21-03-31_edpb_edps_joint_opinion_digital_green_certificate_en_0.pdf


raise concerns about the sharing of health data with third parties and the development of digital identity systems.

ICCL wrote to the Minister for Foreign Affairs and Minister for Health305 to raise concerns about vaccination passport systems, specifically raising these concerns. We suggested that there was a risk that such systems would lead to mandatory vaccination by the backdoor. From ICCL’s perspective, this would fundamentally reverse established Irish policy on voluntary vaccination and breach the HSE’s own Consent for Vaccination for Covid-19: Guiding Principles.306 We called for any use of such a system to be banned within Ireland.307

ICCL’s concerns about a domestic passport system were heightened after the Tánaiste said that the Government would introduce “more freedoms for those who have been vaccinated”308 and reports they would be used for sports events.309 However, the Government has since indicated that there would be no introduction of Covid passports at a domestic level.

At the time of writing, the Irish Government is currently working on implementing the European Commission’s proposed ‘Digital Green Certificate’, renamed the EU Covid-19 Certificate, to facilitate free movement in the European Union. The certificates are planned to indicate whether a person has been (i) vaccinated, (ii) tested negative, and/or (iii) recovered from Covid. The commission proposes that the certificate would not be a precondition for travel and free movement, a fundamental right in the EU.310

Although it is welcome that these optional certificates are not just concerned with vaccinations, it is unclear whether a certificate holder will be treated differently to a person who would rather present their vaccination card, a negative test result, or another means to show they have recovered from Covid-19. ICCL also supports key recommendations made by the Ada Lovelace Institute311 in respect of proposed certification systems including that certificates or passports should not be rolled out until there is scientific agreement about how they represent

‘lower risk’. They should have a clear, specific and delimited purpose. There should be clear, legal guidance on the permitted and restricted uses of the certificates, and mechanisms to support rights and redress and to tackle illegal use. Measures must be taken to safeguard against future risks and mitigation strategies for global harms such as the normalisation of individualised health risk scoring.

ICCL welcomes the Government’s clarification in correspondence with ICCL, and in public, that Ireland’s version of the EU Covid-19 Certificate will only be issued to those who want it and that there are no plans for any domestic vaccination certificate system312. However, ICCL notes that the European Data Protection Board and European Data Protection Supervisor have raised data protection concerns in respect of the European Commission’s proposal.313

305 ICCL, Letter to Minister for Foreign Affairs Simon Coveney and the Minister for Health Stephen Donnelly, March 18, 2021.306 One principle is: for informed consent to be valid, the person must not be acting under duress. HSE, Consent for Vaccination for Covid-19:

Guiding Principles.307 ICCL, Call for Government to ban vaccine passports within Ireland, 18 March, 2021.308 Vaccinated will be offered additional freedoms, says Varadkar, The Irish Times, April 6, 2021.309 Louise Byrne Vaccine certs being considered by Government for sports fans, Prime Time, RTE, April 9, 2021.310 Treaty on European Union (TEU), Article 3(2); Treaty on the Functioning of the European Union (TFEU), Article 21; Charter of Fundamental Rights

of the European Union, Article 45.311 Ada Lovelace Institute, Checkpoints for vaccine passports, 10 May 2021.312 Twitter, Minister of State with responsibility for Public Procurement eGovernment Ossian Smyth TD, 9 May, 2021.313 European Data Protection Board, EU data protection authorities adopt joint opinion on the Digital Green Certificate proposals, EDPD and EDPS,

April 6, 2021.

8.3 Recommendations

FOR THE HSE AND THE DEPARTMENT OF HEALTH:



3. Publish details relating to the figures for the 14 metrics that the app has, reportedly, been collecting on both a daily and cumulative basis to date;




FOR THE DATA PROTECTION COMMISSIONER:

1. Closely monitor the impact on data protection rights of proposed technological solutions to emergency situations.

2. Publish a note on its investigation into the activities of social welfare inspectors at Ireland’s ports and airports to ascertain if they were carried out lawfully.

FOR THE AGS:

1. Commission a review into its role in the activities of social welfare inspectors at Ireland’s ports and airports

ICCL WOULD URGE THAT IN RELATION TO ANY OR ALL SYSTEMS RELATED TO THE EU COVID-19 CERTIFICATE:

1. The system’s specifications must be published to allow for independent scrutiny.

2. The system’s Data Protection Impact Assessment must be published.

3. The certificates must not conflict in any way with the GDPR.

4. Principles of effectiveness, necessity, proportionality, non-discrimination, and purpose limitation must guide their creation and these principles must be continuously reviewed.

5. The Irish authorities must carry out a fundamental rights impact assessment before the system is launched and afterward to measure their impact. ICCL notes that the European Commission had not carried out an impact assessment to identify the impact of these measures and to assess the effectiveness of existing, less intrusive measures.

6. Certificates should have a limited amount of personal data.

7. Data obtained when verifying the certificates should not be retained.

8. A central database (of any data obtained) should not be established.

9. A clear review process and 12-month sunset clause must be set down.

10. From then, there would be no justification in requiring citizens to present health documents to exercise their right to free movement.

11. Purpose of the certificates must be clearly defined.

12. A mechanism for how they will be monitored must be provided.

13. Use of any data after the pandemic must be forbidden

14. There must also be no future use of the certificates once disbanded.

15. Irish authorities must provide universal, accessible, timely and free of charge testing for those who wish to use the certification system.

16. Any entity or third party that will process and receive data via these certificates should be made public so citizens can exercise their GDPR rights.

FOR THE DEPARTMENT OF SOCIAL PROTECTION:

1. Commission an independent review of the activities of social welfare inspectors at Ireland’s ports and airports to ascertain if they were carried out lawfully.a. The review should establish how many

claims for social welfare payments were suspended due to the airport checks in a manner in which the claimants’ rights to fair procedures were breached.

b. It should outline how the Department selected particular flights and passengers.

c. It should also be completely transparent about how data is/was shared.



The Irish Covid-19 Response III: Impact of Covid-19 and restrictions on at-risk communities and groupsThis part describes the impact of Covid-19 and the related restrictions on different at-risk communities and groups. As noted in the introduction, this is not a comprehensive analysis of the human rights issues raised by the Covid-19 response and restrictions. Instead, it focuses on key rights and issues that ICCL has worked on throughout the Covid-19 response, and the impact of Covid-19 and restrictions on different groups, examined on the basis of previous advocacy by ICCL during the pandemic either with partner organisations or on our own.

SECTION 3

The Irish Covid-19 Response III: Impact of Covid-19 and restrictions on at-risk communities and groupsThis part describes the impact of Covid-19 and the related restrictions on different at-risk communities and groups. As noted in the introduction, this is not a comprehensive analysis of the human rights issues raised by the Covid-19 response and restrictions. Instead, it focuses on key rights and issues that ICCL has worked on throughout the Covid-19 response, and the impact of Covid-19 and restrictions on different groups, examined on the basis of previous advocacy by ICCL during the pandemic either with partner organisations or on our own.

SECTION 3


IMPACT OF COVID-19 AND RESTRICTIONS ON THE RIGHT TO EQUALITY AND AT-RISK

GROUPS

9




IMPACT OF COVID-19 AND RESTRICTIONS ON THE RIGHT TO EQUALITY AND AT-RISK

GROUPS

9




314 See for example, Constitution of Ireland, Article 40.1; ECHR, Article 14; ICCPR Article 26; CRC, Article 2.315 Irish Human Rights and Equality Commission Act 2014, s. 42.316 United Nations, COVID-19 and Human Rights: We are all in this together, April 2020, p. 10 .317 ICCL, Monitoring rights during the pandemic, 11-17 April 2020, 2020.318 ICCL, Monitoring rights during the pandemic, 11-17 April 2020, 2020.319 ICCL, Monitoring rights during the pandemic, 18-24 April 2020, 2020.320 Covid-19 NGO Group, Marginalised Groups and Promoting Equality, Inclusion and Human Rights in the Covid Crisis – A Joint Submission, 2020.321 ICCL, Monitoring rights during the pandemic, 13-19 June 2020, 2020.

9. Impact of Covid-19 and restrictions on the right to equality and at-risk groups9.1 Legal framework – Right to equality and non-discriminationThe right to equality and non-discrimination is guaranteed by a wide range of national, regional and international standards314. Public bodies in Ireland have a statutory duty to promote equality, eliminate discrimination, and protect the human rights of members, staff, and the persons to whom they provide services.315 A fundamental human rights principle in responding to emergencies, underpinned by the principle of equality and non-discrimination, is the need to prioritise the protection of the most vulnerable.

State responses to Covid-19 raise equality and non-discrimination concerns, especially in relation to vulnerable or disadvantaged groups. The UN’s policy briefing on human rights and Covid-19 highlights that: “States have a responsibility to ensure that everyone is protected from this virus and its impact. This may require special measures and protection for particular groups most at risk or disproportionately impacted”.316

9.2 Need to address the disproportionate impact of Covid-19 and Covid-19 regulationsFrom the outset of the pandemic, ICCL has called for safeguards to be put in place to identify and protect society’s most at-risk communities.317 In our submission

to the Oireachtas in March 2020, ICCL identified the need to prioritise measures that would protect the most vulnerable populations from Covid-19, including those living in congregated settings such as nursing homes, Direct Provision Centres and halting sites, and those who may not have adequate access to safe sanitation such as people experiencing homelessness.318

We emphasised the Government’s obligations to protect all those in vulnerable situations, whether socially, economically or in terms of their general health or housing situation. We called for specific measures for people who could not self-isolate, as well as for women and children who may be victims of domestic violence. We emphasised that provision of essential healthcare should not be dependent on economic status during this crisis, or ever, and called on Government to ensure that any facility that can provide healthcare during a time of national crisis should provide it on the basis of those most in need.

In April 2020, ICCL joined other civil society organisations in sending a joint submission to the Government advocating a legislative and policy response to the Covid-19 crisis based on social justice and human rights, a collective approach and community empowerment, and participation.319 This submission made recommendations for measures to address the disproportionate impact on at-risk groups.320 In June 2020, ICCL met with the Minister for Health and, along with highlighting a range of human rights issues, emphasised the need to collect and publish disaggregated data on those most affected by the pandemic and by the regulations.321 We continue to call for a human rights impact assessment involving all stakeholders to help identify groups that are disproportionately impacted by

"ICCL identified the need to prioritise measures that would protect the most vulnerable populations from Covid-19, including those living in congregated settings such as nursing homes, Direct Provision Centres and halting sites, and those who may not have adequate access to safe sanitation such as people experiencing homelessness."

https://www.un.org/sites/un2.un.org/files/un_policy_brief_on_human_rights_and_covid_23_april_2020.pdf




https://www.communityworkireland.ie/covid-19-ngo-group-marginalised-groups-and-promoting-equality-inclusion-and-human-rights-in-the-covid-crisis-a-joint-submission/



322 ICCL, Monitoring rights during the pandemic, 18-24 April 2020, 2020.323 Focus Ireland, Homeless Figures and the impact of Covid-19, 2020.324 Austin O’Carroll et al., Harm reduction in the time of Covid-19: Case study of homelessness and drug use in Dublin, Ireland, The International

Journal on Drug Policy, vol. 87, 2021.325 Hugh O’Connell, Call for remote abortion consultations to continue, Irish Independent, 4 April 2021.326 Orla Ryan, Private hospitals will be made public for duration of coronavirus pandemic, The Journal, 24 March 2020.327 Deirdre Ahern and Suryapratim Roy, Law and policy responses to Covid-19 in Ireland: Supporting individuals, communities, businesses and the

economy, Covid-19 Legal Observatory, 2020; Austin O’Carroll et al., Harm reduction in the time of Covid-19: Case study of homelessness and drug use in Dublin, Ireland, The International Journal on Drug Policy, vol. 87, 2021.

328 However, a year-long deal was struck in January 2021 that would see private hospitals provide space to public patients if Covid-19 cases reached a certain threshold. See Orla Dwyer, New deal: Private hospitals agree to provide 30% capacity as 1,180 people hospitalised with Covid-19, The Journal, 8 January 2021.

329 Cormac McQuinn and Sarah Burns, Evictions from rental properties to resume amid homelessness fears, The Irish Times, 23 April 2021.330 Special Committee on Covid-19 Response, Congregated Settings: Meat Plants, 10 July 2020.331 Migrant Rights Centre Ireland, Working to the Bone: The Experiences of Migrant Workers in the Meat Sector in Ireland, 2020, p. 3.332 Special Committee on Covid-19 Response, Congregated Settings: Meat Plants, 10 July 2020.333 Migrant Rights Centre Ireland, Working to the Bone: The Experiences of Migrant Workers in the Meat Sector in Ireland, 2020, p. 6.

Covid-19 and the restrictions to ensure that more proportionate and targeted measures are used in the public health effort.322 Such an assessment has not been carried out, making it difficult to understand from a comprehensive human rights perspective the different impacts of Covid-19 and the restrictions felt by various groups.

Government and other public sector actors have taken some positive steps to protect at-risk communities from Covid-19. The moratorium on evictions and rent freeze introduced in March 2020 reduced the numbers of people becoming homeless.323 Health professionals reported positive outcomes from interventions designed to protect the most vulnerable people experiencing homelessness, including provision of housing for the elderly and important supports for drug using populations.324 Remote access for a first consultation on termination of pregnancy services was also introduced.325 Government also ensured, in the first months of the pandemic, that private healthcare facilities would be made available to all residents in Ireland should public hospitals exceed their capacity.326 These steps in addressing two of Ireland’s most persistent crises of equality – health and housing – were viewed by many as a demonstration that political will and focus were the key remedies required to resolve them.327 ICCL calls for the same political will and focus on resolving structural societal inequality to be included as part of Ireland’s recovery plan so we can truly ‘build back better’. However, Government ended its takeover of

private hospitals in 2020328 and the ban on evictions from rented properties ended in April 2021, amidst fears of a rise in homelessness.329

It is now clear that Covid-19 has had a worse impact on certain groups, including older people, those with pre-existing chronic conditions, and those living and/or working in congregated settings. For example, workers in congregated settings, such as meat processing factories have been disproportionately affected. There have been significant outbreaks of Covid-19 in such settings. The majority of workers in the meat processing sector are migrant workers from a range of EU and non-EU countries.330 Migrant Rights Centre Ireland (MRCI) highlighted how workers in this sector were “some of the hardest hit by Covid-19 outbreaks, with over 10% of the workforce contracting the virus.”331 The pandemic has also shone a spotlight on the challenging working conditions and lack of regulation of this sector. While there is limited data on workers’ experiences in this sector, available data shows that working conditions in this sector are “difficult and dangerous.”332 Covid-19 has revealed the failure of State institutions to protect certain workers and a gap in regulations around working conditions.333

Restrictions introduced to combat Covid-19 have disproportionately affected certain communities and exacerbated pre-existing social inequalities. As highlighted by the Council of Europe Steering Committee on Anti-Discrimination, Diversity and Inclusion (CDADI), “the crisis has not affected all

"It is now clear that Covid-19 has had a worse impact on certain groups, including older people, those with pre-existing chronic conditions, and those living and/or working in congregated settings."


https://www.focusireland.ie/homeless-figures-and-the-impact-of-covid-19/

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7647898/

https://www.independent.ie/irish-news/health/call-for-remote-abortion-consultations-to-continue-40272541.html

https://www.tcd.ie/law/2020.21/Covid-19%20Public%20Policy%20Report.pdf

https://www.tcd.ie/law/2020.21/Covid-19%20Public%20Policy%20Report.pdf



https://www.thejournal.ie/private-hospital-agreements-healthcare-coronavirus-5319589-Jan2021/

https://www.irishtimes.com/news/social-affairs/evictions-from-rental-properties-to-resume-amid-homelessness-fears-1.4545169

https://www.oireachtas.ie/ga/debates/debate/special_committee_on_covid-19_response/2020-07-10/3/

https://www.mrci.ie/app/uploads/2020/11/Report_Working-to-the-bone_final.pdf

https://www.oireachtas.ie/ga/debates/debate/special_committee_on_covid-19_response/2020-07-10/3/



322 ICCL, Monitoring rights during the pandemic, 18-24 April 2020, 2020.323 Focus Ireland, Homeless Figures and the impact of Covid-19, 2020.324 Austin O’Carroll et al., Harm reduction in the time of Covid-19: Case study of homelessness and drug use in Dublin, Ireland, The International

Journal on Drug Policy, vol. 87, 2021.325 Hugh O’Connell, Call for remote abortion consultations to continue, Irish Independent, 4 April 2021.326 Orla Ryan, Private hospitals will be made public for duration of coronavirus pandemic, The Journal, 24 March 2020.327 Deirdre Ahern and Suryapratim Roy, Law and policy responses to Covid-19 in Ireland: Supporting individuals, communities, businesses and the

economy, Covid-19 Legal Observatory, 2020; Austin O’Carroll et al., Harm reduction in the time of Covid-19: Case study of homelessness and drug use in Dublin, Ireland, The International Journal on Drug Policy, vol. 87, 2021.

328 However, a year-long deal was struck in January 2021 that would see private hospitals provide space to public patients if Covid-19 cases reached a certain threshold. See Orla Dwyer, New deal: Private hospitals agree to provide 30% capacity as 1,180 people hospitalised with Covid-19, The Journal, 8 January 2021.

329 Cormac McQuinn and Sarah Burns, Evictions from rental properties to resume amid homelessness fears, The Irish Times, 23 April 2021.330 Special Committee on Covid-19 Response, Congregated Settings: Meat Plants, 10 July 2020.331 Migrant Rights Centre Ireland, Working to the Bone: The Experiences of Migrant Workers in the Meat Sector in Ireland, 2020, p. 3.332 Special Committee on Covid-19 Response, Congregated Settings: Meat Plants, 10 July 2020.333 Migrant Rights Centre Ireland, Working to the Bone: The Experiences of Migrant Workers in the Meat Sector in Ireland, 2020, p. 6.

Covid-19 and the restrictions to ensure that more proportionate and targeted measures are used in the public health effort.322 Such an assessment has not been carried out, making it difficult to understand from a comprehensive human rights perspective the different impacts of Covid-19 and the restrictions felt by various groups.

Government and other public sector actors have taken some positive steps to protect at-risk communities from Covid-19. The moratorium on evictions and rent freeze introduced in March 2020 reduced the numbers of people becoming homeless.323 Health professionals reported positive outcomes from interventions designed to protect the most vulnerable people experiencing homelessness, including provision of housing for the elderly and important supports for drug using populations.324 Remote access for a first consultation on termination of pregnancy services was also introduced.325 Government also ensured, in the first months of the pandemic, that private healthcare facilities would be made available to all residents in Ireland should public hospitals exceed their capacity.326 These steps in addressing two of Ireland’s most persistent crises of equality – health and housing – were viewed by many as a demonstration that political will and focus were the key remedies required to resolve them.327 ICCL calls for the same political will and focus on resolving structural societal inequality to be included as part of Ireland’s recovery plan so we can truly ‘build back better’. However, Government ended its takeover of

private hospitals in 2020328 and the ban on evictions from rented properties ended in April 2021, amidst fears of a rise in homelessness.329

It is now clear that Covid-19 has had a worse impact on certain groups, including older people, those with pre-existing chronic conditions, and those living and/or working in congregated settings. For example, workers in congregated settings, such as meat processing factories have been disproportionately affected. There have been significant outbreaks of Covid-19 in such settings. The majority of workers in the meat processing sector are migrant workers from a range of EU and non-EU countries.330 Migrant Rights Centre Ireland (MRCI) highlighted how workers in this sector were “some of the hardest hit by Covid-19 outbreaks, with over 10% of the workforce contracting the virus.”331 The pandemic has also shone a spotlight on the challenging working conditions and lack of regulation of this sector. While there is limited data on workers’ experiences in this sector, available data shows that working conditions in this sector are “difficult and dangerous.”332 Covid-19 has revealed the failure of State institutions to protect certain workers and a gap in regulations around working conditions.333

Restrictions introduced to combat Covid-19 have disproportionately affected certain communities and exacerbated pre-existing social inequalities. As highlighted by the Council of Europe Steering Committee on Anti-Discrimination, Diversity and Inclusion (CDADI), “the crisis has not affected all

"It is now clear that Covid-19 has had a worse impact on certain groups, including older people, those with pre-existing chronic conditions, and those living and/or working in congregated settings."


minority groups in the same way but rather has had an asymmetric impact, with groups that were already marginalised before the crisis becoming even more disenfranchised.”334

The disproportionate impact of Covid-19 restrictions has been acknowledged by the Government. Its 2021 Covid-19 Resilience and Recovery Plan recognised how the Covid-19 pandemic has “magnified the inequalities experienced by many vulnerable and disadvantaged communities such as the Irish Traveller community, the Roma community, migrants, those who are homeless, those living in Direct Provision and those struggling with addiction.”335 IHREC examined the extent to which Covid-19 related restrictions have affected disadvantaged groups and concluded that “the restrictions have been implemented in ways that breach the rule of law and that disproportionately affect disadvantaged and vulnerable groups identified by proscribed groups of discrimination and international human rights treaties.”336

Further, the need to “build back better” has been recognised internationally and nationally. As the UN Secretary-General stated, “Everything we do during and after this crisis must be with a strong focus on more equal, inclusive, and sustainable economies and societies that are more resilient in the face of pandemics, climate change, and the many other global challenges we face.”337 The UN High Commissioner for Human Rights has emphasised that “to learn from what went right, we must look at what went wrong. Today’s multifaceted crisis has unmasked the strong link between race, ethnicity, socioeconomic status and health outcomes. Pre-existing inequalities should be contextualized within historical, political, social and economic spaces, and be effectively addressed to build back better with equality and quality.”338 Irish stakeholders, such as Pavee Point, have similarly advocated for a just recovery which would “build on achieving equality and fulfilling human rights” and “promote an intercultural and anti-racist society.”339

334 Council of Europe Steering Committee on Anti-Discrimination, Diversity and Inclusion, COVID-19: An analysis of the anti-discrimination, diversity and inclusion dimensions in Council of Europe member States, November 2020, p. 25.

335 Department of the Taoiseach, Covid-19 Resilience and Recovery 2021 – The Path Ahead, 23 February 2021, p. 19.336 IHREC, Ireland’s Emergency Powers during the Covid-19 Pandemic, 2021, p. 83.337 UNICEF, Reimagining our future: Building back better from Covid-19, 2020, p. 1.338 UN High Commissioner to Human Rights, Oral update on the human rights impact of the COVID-19 pandemic, 45th session of the Human Rights

Council, 14 September 2020. 339 Pavee Point, Covid-19 and Irish Travellers: Interim Responses, Reflections and Recommendations, 2020, p. 18.340 TILDA, High-risk categories for Covid-19 and their distribution by county in Republic of Ireland-evidence from the TILDA study, 2020; Trinity

College Dublin, Documenting the toll of Covid-19 on Ireland’s older people, 29 June 2020.341 Department of the Taoiseach, Report on Social Implications of Covid-19 in Ireland: Preliminary Assessment, 15 May 2020, p. 6.342 Department of Health, Covid-19 Nursing Homes Expert Panel: Final Report, 19 August 2020.343 TheJournal.ie, Covid death toll in nursing homes passes 1500, with 369 in January alone, 2 February 2021.344 ICCL, Monitoring rights during the pandemic, 11-17 April 2020, 2020.

9.3 Brief examination of the disproportionate impact on different groupsWhile recognising the importance of an intersectional approach to understanding inequalities and that discrimination can be exacerbated on multiple grounds, this report examines the impact of Covid-19 and Covid-19 related restrictions in relation to different groups separately.

This section examines the impact of Covid-19 and related restrictions on the basis of: age, gender, race, ethnicity, disability, migrant status, sexual orientation and gender identity. We include groups on the basis of previous advocacy by ICCL during the pandemic either with partner organisations or on our own. This list of groups does not purport to represent all of the groups disproportionately affected by the pandemic, nor does it include all of the potential grounds of discrimination. This section seeks to highlight some key issues and make concrete recommendations for action, rather than comprehensively analyse the human rights issues affecting at-risk groups.

(i) AgeOlder people: Covid-19 has had a disproportionate impact on older people.340 The Government has categorised people over 60 as at high risk and people over 70 as extremely vulnerable (very high risk) from Covid-19.341 Older people living in nursing homes have been severely affected.342 As of February 2021, more than 1500 people have died with Covid-19 in nursing homes.343

Further, older people living in congregated settings, such as nursing homes, have been identified as particularly at risk from Covid-19. In April 2020, ICCL expressed concern about the disproportionate impact of Covid-19 on people in care homes and reiterated our call for safeguards to be put in place to identify and protect society’s most vulnerable.344

https://rm.coe.int/prems-126920-gbr-2530-cdadi-covid-19-web-a5-final-2774-9087-5906-1/1680a124aa


https://www.gov.ie/en/publication/c4876-covid-19-resilience-and-recovery-2021-the-path-ahead/

https://www.ihrec.ie/app/uploads/2021/02/Irelands-Emergency-Powers-During-the-Covid-19-Pandemic-25022021.pdf.

https://www.unicef.org/media/73326/file/COVID-Climate-Advocacy-Brief.pdf

https://www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=26232&LangID=E

https://www.paveepoint.ie/wp-content/uploads/2015/04/COVIDREPORTWEB.pdf

https://tilda.tcd.ie/publications/reports/pdf/Report_Covid19Multimorbidity.pdf

https://www.tcd.ie/news_events/articles/documenting-the-toll-of-covid-19-on-irelands-older-people/

https://assets.gov.ie/74373/5cc1bbfe59b447d3b841fa43cecfc79d.pdf

https://www.gov.ie/en/publication/3af5a-covid-19-nursing-homes-expert-panel-final-report/

https://www.thejournal.ie/nursing-homes-ireland-death-toll-5342688-Feb2021/



345 HIQA, The impact of Covid-19 on nursing homes in Ireland, July 2020, p. 10.345 HIQA, The impact of Covid-19 on nursing homes in Ireland, July 2020, p. 12.347 HIQA, The impact of Covid-19 on nursing homes in Ireland, July 2020, p. 10.348 HIQA, The impact of Covid-19 on nursing homes in Ireland, July 2020, pp. 10-11.349 The Journal, Almost 1 in 5 nursing home residents diagnosed with Covid-19, Oireachtas Committee hears, 18 June 2020.350 ICCL and partners, Universal Periodic Review Ireland, 25 March 2021, p. 6. See for example, recommendation by the Special Oireachtas

Committee on COVID-19 that ‘the lack of statutory clinical oversight of care for residents in the private nursing home sector is one of the biggest weaknesses exposed by Covid-19. See Special Committee on Covid-19 (July 2020) Interim Report on Covid-19 in Nursing Homes Response.

351 Department of Health, Covid-19 Nursing Homes Expert Panel: Final Report, 19 August 2020, p. 1.352 Department of Health, Covid-19 Nursing Homes Expert Panel: Final Report, 19 August 2020, p. 6.353 Department of Health, Covid-19 Nursing Homes Expert Panel: Final Report, 19 August 2020, pp.101-113.354 TILDA, Altered lives in a time of crisis: The impact o the Covid-19 pandemic on the lives of older adults in Ireland, 2021, pp. 3-4.355 ICCL, Monitoring rights during the pandemic, 15-21 August 2020, 2020.356 ICCL, Work on OPCAT.

There are approximately 576 registered nursing homes in Ireland, the majority of which are privately owned and run.345 Different measures have been put in place in nursing homes to address Covid-19. For example, there have been visitor restrictions on nursing homes visits since March 2020.346 The Health Information and Quality Authority (HIQA) is the independent regulatory body for nursing homes in Ireland. In March 2020, HIQA temporarily suspended all routine regulatory and monitoring inspections in nursing homes, residential disability services, and certain children’s services to prevent further spread of Covid-19.347 They undertook other regulatory initiatives, including phoning all nursing homes on a fortnightly basis and setting up an ‘Infection Prevention and Control Hub’ support service to provide advice and support on Covid-19 outbreak prevention and management.348

However, given the high numbers of people diagnosed with Covid-19 and death rates of people with Covid-19 in nursing homes, there were claims in the media that nursing homes were “abandoned” at the outbreak of Covid-19.349 A number of stakeholders have raised concerns about the lack of national clinical oversight of care provided in nursing homes, particularly how they are not integrated into the framework of public health and social care.350

In May 2020, the Minister for Health appointed an Expert Panel on Nursing Homes, inter alia, to assess measures adopted to safeguard residents in nursing homes in light of Covid-19.351 The Expert Panel stated that “systematic reform is needed in the way nursing

home care and older persons care is delivered.”352 They made a range of important recommendations relating to public health measures, infection protection and control, outbreak management, future admissions to nursing homes, nursing home management, data analysis, community support teams, general practitioner lead roles on community support teams and in nursing homes, nursing home staffing, training programmes, palliative care, visitors to nursing homes, communications, regulatory recommendations, and a broader range of statutory care supports for older people.353 ICCL considers that more should have been done to protect people in nursing homes from Covid-19 at an earlier stage.

Covid-19 related restrictions have had a negative impact on older people in non-institutional settings. Restrictions have increased the risk of loneliness and social isolation among older people, which entails negative consequences for their physical and mental health.354 ICCL has highlighted these concerns and the need to address this issue in congregated settings, including in nursing homes.355

ICCL has repeatedly called for the ratification and implementation of the Optional Protocol to the UN Convention against Torture, (OPCAT), including through the launch of a campaign in 2020.356 OPCAT requires States to establish an independent, human rights-focused inspection and monitoring system of all places where people are deprived of their liberty, including nursing homes. It is positive that one of the objectives of the Government’s Department of Justice’s 2021-2023 Statement of Strategy is to

"In April 2020, ICCL expressed concern about the disproportionate impact of Covid-19 on people in care homes and reiterated our call for safeguards to be put in place to identify and protect society’s most vulnerable."

https://www.hiqa.ie/sites/default/files/2020-07/The-impact-of-COVID-19-on-nursing-homes-in-Ireland_0.pdf




https://www.thejournal.ie/one-in-five-nursing-home-residents-covid-19-5127054-Jun2020/

https://www.iccl.ie/wp-content/uploads/2021/04/ICCL-coalition-submission-to-UPR.pdf

https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/special_committee_on_covid-19_response/reports/2020/2020-07-31_interim-report-on-covid-19-in-nursing-homes_en.pdf




https://tilda.tcd.ie/publications/reports/pdf/c19-key-findings-report/COVID-19%20Key%20Findings%20Report.pdf


https://www.iccl.ie/tag/opcat/


345 HIQA, The impact of Covid-19 on nursing homes in Ireland, July 2020, p. 10.345 HIQA, The impact of Covid-19 on nursing homes in Ireland, July 2020, p. 12.347 HIQA, The impact of Covid-19 on nursing homes in Ireland, July 2020, p. 10.348 HIQA, The impact of Covid-19 on nursing homes in Ireland, July 2020, pp. 10-11.349 The Journal, Almost 1 in 5 nursing home residents diagnosed with Covid-19, Oireachtas Committee hears, 18 June 2020.350 ICCL and partners, Universal Periodic Review Ireland, 25 March 2021, p. 6. See for example, recommendation by the Special Oireachtas

Committee on COVID-19 that ‘the lack of statutory clinical oversight of care for residents in the private nursing home sector is one of the biggest weaknesses exposed by Covid-19. See Special Committee on Covid-19 (July 2020) Interim Report on Covid-19 in Nursing Homes Response.

351 Department of Health, Covid-19 Nursing Homes Expert Panel: Final Report, 19 August 2020, p. 1.352 Department of Health, Covid-19 Nursing Homes Expert Panel: Final Report, 19 August 2020, p. 6.353 Department of Health, Covid-19 Nursing Homes Expert Panel: Final Report, 19 August 2020, pp.101-113.354 TILDA, Altered lives in a time of crisis: The impact o the Covid-19 pandemic on the lives of older adults in Ireland, 2021, pp. 3-4.355 ICCL, Monitoring rights during the pandemic, 15-21 August 2020, 2020.356 ICCL, Work on OPCAT.

There are approximately 576 registered nursing homes in Ireland, the majority of which are privately owned and run.345 Different measures have been put in place in nursing homes to address Covid-19. For example, there have been visitor restrictions on nursing homes visits since March 2020.346 The Health Information and Quality Authority (HIQA) is the independent regulatory body for nursing homes in Ireland. In March 2020, HIQA temporarily suspended all routine regulatory and monitoring inspections in nursing homes, residential disability services, and certain children’s services to prevent further spread of Covid-19.347 They undertook other regulatory initiatives, including phoning all nursing homes on a fortnightly basis and setting up an ‘Infection Prevention and Control Hub’ support service to provide advice and support on Covid-19 outbreak prevention and management.348

However, given the high numbers of people diagnosed with Covid-19 and death rates of people with Covid-19 in nursing homes, there were claims in the media that nursing homes were “abandoned” at the outbreak of Covid-19.349 A number of stakeholders have raised concerns about the lack of national clinical oversight of care provided in nursing homes, particularly how they are not integrated into the framework of public health and social care.350

In May 2020, the Minister for Health appointed an Expert Panel on Nursing Homes, inter alia, to assess measures adopted to safeguard residents in nursing homes in light of Covid-19.351 The Expert Panel stated that “systematic reform is needed in the way nursing

home care and older persons care is delivered.”352 They made a range of important recommendations relating to public health measures, infection protection and control, outbreak management, future admissions to nursing homes, nursing home management, data analysis, community support teams, general practitioner lead roles on community support teams and in nursing homes, nursing home staffing, training programmes, palliative care, visitors to nursing homes, communications, regulatory recommendations, and a broader range of statutory care supports for older people.353 ICCL considers that more should have been done to protect people in nursing homes from Covid-19 at an earlier stage.

Covid-19 related restrictions have had a negative impact on older people in non-institutional settings. Restrictions have increased the risk of loneliness and social isolation among older people, which entails negative consequences for their physical and mental health.354 ICCL has highlighted these concerns and the need to address this issue in congregated settings, including in nursing homes.355

ICCL has repeatedly called for the ratification and implementation of the Optional Protocol to the UN Convention against Torture, (OPCAT), including through the launch of a campaign in 2020.356 OPCAT requires States to establish an independent, human rights-focused inspection and monitoring system of all places where people are deprived of their liberty, including nursing homes. It is positive that one of the objectives of the Government’s Department of Justice’s 2021-2023 Statement of Strategy is to

"In April 2020, ICCL expressed concern about the disproportionate impact of Covid-19 on people in care homes and reiterated our call for safeguards to be put in place to identify and protect society’s most vulnerable."


publish the legislation to implement OPCAT by the end of 2021.357 This is an urgent measure to take and its importance has been highlighted by the impact of Covid-19 in these settings.

Children: The Covid-19 restrictions have also had a negative impact on children, who have been particularly affected by the closure of schools and childcare facilities. The ISPCC has reported an increase in calls to their Childline service during the Covid-19 pandemic, particularly during high levels of restrictions.358

Child abuse: The Covid-19 pandemic and restrictions have increased the risk of child abuse.359 The Child Care Law Reporting Project identified ‘instances of severe neglect’ of children during the pandemic.360 This raised “the question as to whether the prolonged closure of schools meant that teachers, often at the front line of protecting such children, were cut off from them and the neglect went unnoticed for far too long.”361 Further, as discussed below, there has been an increase in children seeking support from domestic violence services.362

Education: There have been differing restrictions on educational institutions throughout the Covid-19 pandemic, including school closures. These restrictions have had a disproportionate impact on disadvantaged children, children of ethnic minorities and migrants, and children with mental and intellectual disabilities.363 This has been acknowledged by Government, which has stated that Traveller and Roma children are “more severely impacted by school closures as lack of access to broadband and technology make engagement with online teaching difficult.”364 These restrictions clearly impact the right to education, however, an in-depth analysis of this is beyond the scope of this report. In 2021, leading children’s charities launched the Children’s Future Ireland campaign focusing

on children’s right to an adequate education. ICCL endorses their recommendations.

(ii) GenderThe Covid-19 response is increasing and exacerbating existing gender inequalities across every sphere, from health to the economy, security and social protection.365 The restrictions have affected women differently.366 Women are more at risk of domestic violence; more likely to work in frontline healthcare and service roles; and experience a disproportionate burden of caring responsibilities. Further, there is a lack of participation and representation of women in Covid-19 related policymaking.367 This was starkly illustrated when Ireland entered its second level-5 lockdown in October 2020 and ten men – representatives from NPHET, the Government and the HSE - made the announcement to the public.368 As stressed in a study requested by the FEMM committee of the European parliament, “it is not the virus itself that causes socio-economic impacts on women, but rather the mechanisms introduced by administrations to mitigate against disease transmission which cause the downstream effects which have disproportionately affected women.”369

Domestic violence: There has been an increase in the numbers of women and children seeking support from domestic violence agencies during the Covid-19 pandemic.370 For example, AGS reported a 25% increase in calls relating to domestic violence in April/May 2020 compared to April/May 2019.371 Different measures have been taken to address the rise in domestic violence, including an awareness campaign, increased funding for domestic violence organisations, a specific AGS operation to support victims of domestic violence, and the prioritisation of domestic violence and childcare cases by the Courts Service and Legal Aid Board.372 However, leading

357 Department of Justice, Statement of Strategy, 2021-2023, 2021.358 ISPCC, Childline answered over 70,000 contacts from children during peak Covid-19 restrictions, 30 June 2020.359 Mark Hilliard, Coronavirus: Doctors ‘concerned’ over child abuse risk during pandemic, 3 July 2020.360 Child Care Law Reporting Project, Reports, 2021.361 Kitty Holland, Cases of ‘severe’ child neglect discovered during lockdown, 18 January 2021.362 Carl O’Brien, Covid-19: Sharp increase in women and children fleeing domestic violence, 10 November 2020.363 ESRI, Covid-19: Implications for policy on children and young people, 2020, p. 28.364 Department of the Taoiseach, Report on Social Implications of Covid-19 in Ireland: Preliminary Assessment, 15 May 2020, p. 26.365 See for example, UN, Policy Brief: The impact of Covid-19 on women, 9 April 2020. 366 Department of the Taoiseach, Report on Social Implications of Covid-19 in Ireland: Preliminary Assessment, 15 May 2020, p. 26.367 NWCI, Covid-19 and Women – Our Advocacy Work.368 Elaine Loughlin, Covid-19 has shown it’s still very much a man’s world, Irish Examiner, 18 October 2020.369 Clare Wenham, The gendered impact of the Covid-19 crisis and post-crisis period, September 2020, p. 53.370 Carl O’Brien, Covid-19: Sharp increase in women and children fleeing domestic violence, The Irish Times, 10 November 2020.371 Jessica Doyle, L&RS Note: Domestic violence and Covid-19 in Ireland, 9 June 2020, p.1; Sean McCarthaigh, Increase in domestic abuse incidents

linked to Covid-19 lockdown, Irish Examiner, 1 June 2020.372 Jessica Doyle, L&RS Note: Domestic violence and Covid-19 in Ireland, 9 June 2020, p. 5.

http://www.justice.ie/en/JELR/Department_of_Justice_Strategy_Statement_2021_-_2023.pdf/Files/Department_of_Justice_Strategy_Statement_2021_-_2023.pdf

https://www.ispcc.ie/childline-answered-over-70000-contacts-from-children-during-peak-covid-19-restrictions/

https://www.irishtimes.com/news/social-affairs/coronavirus-doctors-concerned-over-child-abuse-risk-during-pandemic-1.4295300

https://www.childlawproject.ie/publications/introduction-2020-volume-2/

https://www.irishtimes.com/news/social-affairs/cases-of-severe-child-neglect-discovered-during-lockdown-1.4460554

https://www.irishtimes.com/news/social-affairs/covid-19-sharp-increase-in-women-and-children-fleeing-domestic-violence-1.4404850

https://www.esri.ie/system/files/publications/SUSTAT94_3.pdf


https://www.unwomen.org/-/media/headquarters/attachments/sections/library/publications/2020/policy-brief-the-impact-of-covid-19-on-women-en.pdf?la=en&vs=1406


https://www.nwci.ie/women_and_covid_19/covid_19_and_women_our_advocacy_work

https://www.irishexaminer.com/opinion/commentanalysis/arid-40066929.html

https://www.europarl.europa.eu/RegData/etudes/STUD/2020/658227/IPOL_STU(2020)658227_EN.pdf

https://www.irishtimes.com/news/social-affairs/covid-19-sharp-increase-in-women-and-children-fleeing-domestic-violence-1.4404850

https://data.oireachtas.ie/ie/oireachtas/libraryResearch/2020/2020-06-09_l-rs-note-domestic-violence-and-covid-19-in-ireland_en.pdf





organisations working on domestic violence have warned that these measures are not sufficient and specifically highlighted the need for further funding and more safe emergency accommodation.373

Healthcare workers: The majority of healthcare workers in Ireland are female.374 Healthcare workers have been disproportionately affected by Covid-19, negatively affecting their physical and mental health.375

Disproportionate burden of caring responsibilities: Women have a disproportionate burden in relation to caring responsibilities, providing the majority of care for family members. The Covid-19 restrictions, such as the closure of schools and childcare facilities, have increased this burden.376 A joint NGO submission highlighted the disproportionate impact of Covid-19 restrictions on one parent families, the majority of whom are women (86%).377

Rise of unemployment: In April 2020, ICCL contributed to a joint submission on marginalised groups that showed that the sectors likely to be worst affected by job losses – retail and hospitality – are sectors that are heavily female dominated378. PwC’s annual Women in Work Index showed that the increased unequal burden of care carried by women caused more women than men to leave the labour market during the pandemic. Consequently, the rise in unemployment rate during the pandemic has been higher for women, causing a “shecession”379.

Abortion: As noted above, it was welcome that Government introduced remote consultations for

those seeking abortion. This ensured services were accessible during the pandemic and ICCL, with the Abortion Working Group led by NWCI, have called for remote consultations to be continued after the pandemic. However, the Abortion Working Group has heard directly from service providers that women who are still travelling to seek abortions that remain illegal under Irish law were impacted by restrictions on travel, causing high levels of distress. At the time of writing, Irish women are awaiting clarity on whether a negative PCR test is necessary in order to travel abroad for a termination of pregnancy.380 Government should clarify this immediately. ICCL calls for abortion to be included as an urgent medical service and, in keeping with the latest amendments to the law on quarantine, those seeking such services abroad should be exempted from mandatory hotel quarantine on their return.

(iii) Race and EthnicityResearch by the National Economic and Social Council has highlighted that “Black, Black Irish, Asian, Asian Irish and Traveller groups are more likely to contract Covid-19 than those who are White Irish. This may be linked to their occupation and housing conditions.”381

Anti-Traveller and anti-Roma discrimination is extremely prevalent in Ireland, including in relation to accessing accommodation, education, and health services.382 A National Traveller and Roma Inclusion Strategy (2017-2021) was developed but its implementation has been slow, piecemeal and hampered by a lack of clear targets and budget lines.383 The context of

373 Jessica Doyle, L&RS Note: Domestic violence and Covid-19 in Ireland, 9 June 2020, p. 5.374 Ellen O’Riordan, Women not being heard on critical public health issues, says group, 4 February 2021.375 Laura O’Connor et al., Analysis: new research finds Irish frontline healthcare workers are reporting high rates of anxiety, stress and depression

because of the pandemic, 28 January 2021.376 NWCI, Women’s experiences of caring during Covid-19, November 2020.377 Joint NGO Submission to the Special Committee on Covid-19 Response, Supporting One Parent Families During and After the Covid-19 Crisis,

September 2020.378 Covid-19 NGO Group, Marginalised Groups and Promoting Equality, Inclusion and Human Rights in the Covid Crisis – A Joint Submission, 2020, p. 12.379 PwC Ireland, PwC Women in Work Index reveals COVID reversing workforce gains, 5 March 2021. 380 Kitty Holland, Calls for clarity on whether abortion an ‘urgent’ medical service, The Irish Times, 3 May 2021.381 Orlaith Hennessy, Secretariat Covid-19 Working Paper Series: The impacts of Covid-19 on Ethnic Minority and Migrant Groups in Ireland, National

Economic and Social Council, 6 January 2021, p. 4.382 NUIG, Implications of Covid-19 pandemic on Roma and Travellers communities, 15 June 2020.383 Pavee Point, Civil society monitoring report on implementation of the National Traveller and Roma Inclusion Strategy, 2019, p. 7.

"ICCL calls for abortion to be included as an urgent medical service and, in keeping with the latest amendments to the law on quarantine, those seeking such services abroad should be exempted from mandatory hotel quarantine on their return."


https://www.irishtimes.com/news/ireland/irish-news/women-not-being-heard-on-critical-public-health-issues-says-group-1.4476459

https://www.rte.ie/brainstorm/2021/0128/1193605-covid-19-frontline-healthcare-workers-mental-health-stress-depression-anxiety/

https://www.rte.ie/brainstorm/2021/0128/1193605-covid-19-frontline-healthcare-workers-mental-health-stress-depression-anxiety/

https://www.nwci.ie/learn/publication/womens_experiences_of_caring_during_covid_19

https://www.barnardos.ie/media/9015/final-joint-ngo-submission-covid-19-one-parent-families.pdf


https://www.pwc.ie/media-centre/press-releases/2021/women-in-work-index-reveals-covid-reverses.html

https://www.irishtimes.com/news/social-affairs/calls-for-clarity-on-whether-abortion-an-urgent-medical-service-1.4553734

http://files.nesc.ie/nesc_research_series/research_series_paper_18_Covid19Migrants.pdf

https://fra.europa.eu/sites/default/files/fra_uploads/ie_report_-_covid-19_impact_on_roma_en.pdf

https://www.paveepoint.ie/wp-content/uploads/2015/04/RCM-Y3-C3-Ireland-final-15Jan2020-1.pdf


organisations working on domestic violence have warned that these measures are not sufficient and specifically highlighted the need for further funding and more safe emergency accommodation.373

Healthcare workers: The majority of healthcare workers in Ireland are female.374 Healthcare workers have been disproportionately affected by Covid-19, negatively affecting their physical and mental health.375

Disproportionate burden of caring responsibilities: Women have a disproportionate burden in relation to caring responsibilities, providing the majority of care for family members. The Covid-19 restrictions, such as the closure of schools and childcare facilities, have increased this burden.376 A joint NGO submission highlighted the disproportionate impact of Covid-19 restrictions on one parent families, the majority of whom are women (86%).377

Rise of unemployment: In April 2020, ICCL contributed to a joint submission on marginalised groups that showed that the sectors likely to be worst affected by job losses – retail and hospitality – are sectors that are heavily female dominated378. PwC’s annual Women in Work Index showed that the increased unequal burden of care carried by women caused more women than men to leave the labour market during the pandemic. Consequently, the rise in unemployment rate during the pandemic has been higher for women, causing a “shecession”379.

Abortion: As noted above, it was welcome that Government introduced remote consultations for

those seeking abortion. This ensured services were accessible during the pandemic and ICCL, with the Abortion Working Group led by NWCI, have called for remote consultations to be continued after the pandemic. However, the Abortion Working Group has heard directly from service providers that women who are still travelling to seek abortions that remain illegal under Irish law were impacted by restrictions on travel, causing high levels of distress. At the time of writing, Irish women are awaiting clarity on whether a negative PCR test is necessary in order to travel abroad for a termination of pregnancy.380 Government should clarify this immediately. ICCL calls for abortion to be included as an urgent medical service and, in keeping with the latest amendments to the law on quarantine, those seeking such services abroad should be exempted from mandatory hotel quarantine on their return.

(iii) Race and EthnicityResearch by the National Economic and Social Council has highlighted that “Black, Black Irish, Asian, Asian Irish and Traveller groups are more likely to contract Covid-19 than those who are White Irish. This may be linked to their occupation and housing conditions.”381

Anti-Traveller and anti-Roma discrimination is extremely prevalent in Ireland, including in relation to accessing accommodation, education, and health services.382 A National Traveller and Roma Inclusion Strategy (2017-2021) was developed but its implementation has been slow, piecemeal and hampered by a lack of clear targets and budget lines.383 The context of

373 Jessica Doyle, L&RS Note: Domestic violence and Covid-19 in Ireland, 9 June 2020, p. 5.374 Ellen O’Riordan, Women not being heard on critical public health issues, says group, 4 February 2021.375 Laura O’Connor et al., Analysis: new research finds Irish frontline healthcare workers are reporting high rates of anxiety, stress and depression

because of the pandemic, 28 January 2021.376 NWCI, Women’s experiences of caring during Covid-19, November 2020.377 Joint NGO Submission to the Special Committee on Covid-19 Response, Supporting One Parent Families During and After the Covid-19 Crisis,

September 2020.378 Covid-19 NGO Group, Marginalised Groups and Promoting Equality, Inclusion and Human Rights in the Covid Crisis – A Joint Submission, 2020, p. 12.379 PwC Ireland, PwC Women in Work Index reveals COVID reversing workforce gains, 5 March 2021. 380 Kitty Holland, Calls for clarity on whether abortion an ‘urgent’ medical service, The Irish Times, 3 May 2021.381 Orlaith Hennessy, Secretariat Covid-19 Working Paper Series: The impacts of Covid-19 on Ethnic Minority and Migrant Groups in Ireland, National

Economic and Social Council, 6 January 2021, p. 4.382 NUIG, Implications of Covid-19 pandemic on Roma and Travellers communities, 15 June 2020.383 Pavee Point, Civil society monitoring report on implementation of the National Traveller and Roma Inclusion Strategy, 2019, p. 7.

"ICCL calls for abortion to be included as an urgent medical service and, in keeping with the latest amendments to the law on quarantine, those seeking such services abroad should be exempted from mandatory hotel quarantine on their return."


discrimination against and marginalisation of these communities increases their vulnerability to Covid-19. In May 2020, the Government recognised the “existing vulnerabilities of members of the Traveller and Roma communities in health and accommodation put them at particular risk of contracting the virus.”384

Further, the enforcement of restrictions may have had a disproportionate impact on people on the basis of their race or ethnicity, as noted in the section on policing above. The UN Committee on the Elimination of Racial Discrimination has previously highlighted concerns about racial profiling by AGS members.385 The lack of disaggregated data on the use of Covid-19 related enforcement powers prevents a comprehensive assessment of whether the powers have been used disproportionately and inconsistently. ICCL has received reports that members of the Black Irish community are consistently over policed by AGS and in some instances have been harassed.

(iv) People with disabilitiesPeople with disabilities make up 13.5% of the Irish population.386 The impact of Covid-19 on people with disabilities has been documented internationally and in Ireland.387 For example, Inclusion Ireland highlighted how people with intellectual disabilities may be at increased risk of Covid-19 due to co-morbidities, low levels of literacy, and reliance on others for support and care.388 Covid-19 related restrictions have also had a disproportionate impact on people with disabilities. For example, the use of face coverings creates communication difficulties, especially for those in the deaf and hearing impaired community.389

Lack of access to services: Resources have been focused on residential services, day services have been closed, and some people with disabilities

384 Department of the Taoiseach, Report on Social Implications of Covid-19 in Ireland: Preliminary Assessment, 15 May 2020, p. 26.385 Committee on the Elimination of Racial Discrimination, Concluding observations on the combined fifth to ninth reports of Ireland, 23 January

2020, CERD/C/IRL/CO/5-9, para. 15.386 Disability Federation of Ireland, Impact of Covid-19 on people with disabilities and the disability sector, 29 June 2020, p. 3.387 See for example, World Health Organisation, Disability considerations during the Covid-19 outbreak, March 2020.388 Inclusion Ireland, Covid-19 and Intellectual Disability: Supporting People with Intellectual Disabilities and their Families, 2020.389 National Health Library and Knowledge Service, Summary of Evidence: Covid-19, 12 May 2020, p. 2.390 Disability Federation of Ireland, Impact of Covid-19 on people with disabilities and the disability sector, 29 June 2020, pp. 6-7.391 IHREC, The Impact of Covid-19 on People with Disabilities, Submission by IHREC to the Oireachtas Special Committee on Covid-19 Response,

June 2020, p. 8.392 IHREC, The Impact of Covid-19 on People with Disabilities, Submission by IHREC to the Oireachtas Special Committee on Covid-19 Response,

June 2020, p. 8.393 Mental Health Commission, Covid-19 Paper 1, Supervising, monitoring and supporting Irish residential mental health services during Covid-19,

24 September 2020, p. 1.394 Mental Health Commission, Assurance required on Covid-19 test results for mental health staff, 11 May 2020; Mental Health Commission, Work

ongoing to protect 3800 residents of mental health facilities, 20 April 2020.395 ICCL, ICCL Submission on the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Bill 2020, 18 March 2020.396 National Economic and Social Council, The impacts of Covid-19 on Ethnic Minority and Migrant Groups in Ireland, 2011.397 Irish Refugee Council, Submission to the Special Committee on Covid-19, 26 May 2020, p. 1.398 Irish Refugee Council, Submission to the Special Committee on Covid-19, 26 May 2020, p. 2.

have had their personal assistant and home services removed in the Covid-19 response.390 IHREC raised concerns about this focus on health care settings rather than social care, family care, and persons living independently, where “disruption to service provision has been challenging.”391 Further, “social care” has not always been prioritised as an “essential service” by the relevant regulations, which poses another barrier for people with disabilities and their carers. 392

People with mental health disabilities: The Mental Health Commission has highlighted how mental health service users in acute settings and long-term residential care units “may be particularly susceptible to developing Covid-19 and adverse effects from Covid-19.”393 It has also highlighted different concerns relating to Covid-19 in mental health facilities, including relating to the testing of staff and staff isolation capacities.394 Further, as noted, procedural safeguards in relation to detention on mental health grounds have been eroded, which is particularly concerning.395

(v) Migrant statusMigrants, refugees, and asylum seekers have been disproportionately negatively affected by Covid-19.396 There have been significant outbreaks of Covid-19 in congregated settings, where migrants, refugees, and asylum seekers live and work, such as direct provision centres.

People residing in Direct Provision centres: There are approximately 7700 people, including more than 1600 children, currently residing in Direct Provision centres.397 These are congregated settings where people share bathrooms, dining areas, living spaces, and laundries. This has meant that social distancing has been “near impossible in many locations.”398 In May 2020, ICCL submitted a joint letter with Nasc


https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CERD/C/IRL/CO/5-9&Lang=En

https://hselibrary.ie/wp-content/uploads/2020/06/Evidence-Summary-COVID-19-Disabilities.pdf

https://apps.who.int/iris/bitstream/handle/10665/332015/WHO-2019-nCov-Disability-2020.1-eng.pdf?sequence=1&isAllowed=y

http://inclusionireland.ie/sites/default/files/attach/basic-page/1655/covid-19-disablity-policy-document-final.pdf





https://www.mhcirl.ie/File/Mental-Health-Commission-Covid-19-paper-1.pdf

https://www.mhcirl.ie/File/PR_110520.pdf



https://www.iccl.ie/wp-content/uploads/2020/03/ICCL-analysis-emergency-COVID19-legislation.pdf

http://files.nesc.ie/nesc_research_series/research_series_paper_18_Covid19Migrants.pdf

https://www.irishrefugeecouncil.ie/submission-to-the-covid-19-response-committee



(the Migrant and Refugee Rights Centre) and the Irish Refugee Council to the Minister for Justice expressing serious concern at reports that residents of a Direct Provision Centre in Caherciveen were being detained against their will following the publication of a photograph with padlocks across the gates of the Centre.399 The Irish Refugee Council conducted a survey to understand people’s experiences of Direct Provision during the Covid-19 pandemic. Over half of the respondents stated that they “did not feel safe in Direct Provision during the pandemic”. 400

The pandemic has also highlighted the failure of the Government to collect data on health issues and vulnerabilities of people applying for international protection, which is a requirement of the EU Reception Conditions Directive.401 Further, different people living in Direct Provision face particular challenges, such as children. LGBTI+ people living in Direct Provision face specific issues, being at high risk of experiencing significant emotional distress and isolation.402 In February 2021, a white paper to end Direct Provision and establish a new international protection support service was published, which is a welcome step in addressing persistent human rights issues in the system.403 ICCL expressed concern at a pause in health and safety inspections of Direct Provision centres during the pandemic.404 We have long called for independent, rights-focused inspections of Direct Provision, which we believe take on a greater importance during a pandemic. We recently launched a campaign on this issue.405

399 ICCL, Monitoring rights during the pandemic, 2-8 May 2020, 2020.400 Irish Refugee Council, Submission to the Special Committee on Covid-19, 26 May 2020, p. 6.401 Irish Refugee Council, Submission to the Special Committee on Covid-19, 26 May 2020, pp. 3-4.402 Covid-19 NGO Group, Marginalised Groups and Promoting Equality, Inclusion and Human Rights in the Covid Crisis – A Joint Submission, 2020,

p. 32.403 Department of Children, Equality, Disability, Integration and Youth, A White Paper to End Direct Provision and to Establish a New International

Protection Support Service, 2021.404 Maresa Fagan, ICCL: Government must introduce proper direct provision inspections, 30 March 2021.405 ICCL Press Release, People in Direct Provision not getting the care they deserve, 30 March 2021.406 Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, Victor

Madrigal-Borloz, Violence and discrimination based on sexual orientation and gender identity during the coronavirus disease (COVID-19) pandemic, 28 July 2020, ref: A/75/258.


408 Statement by Secretary General Marija Pejčinović Burić ahead of the International Day against Homophobia, Transphobia and Biphobia (IDAHOT), Young LGBTI persons must be protected against violence at home and in public, during this crisis and always, 15 May 2020.


410 Covid-19 NGO Group, Marginalised Groups and Promoting Equality, Inclusion and Human Rights in the Covid Crisis – A Joint Submission, 2020, p. 32.

(vi) Sexual Orientation and Gender Identity It is widely recognized that LGBTI+ people have been heavily impacted by the pandemic406.

Violence against LGBTI+ people: As highlighted by the Steering Committee on Anti-Discrimination, Diversity and Inclusion (CDADI), for a number of people belonging to LGBTI communities, compliance with lockdown regulations meant returning home and potentially being confined in hostile environments with family members who are unsupportive or do not accept their sexual orientation or gender identity.407 As the Council of Europe Secretary General stated, “LGBTI+ young people who have traditionally been stigmatised and marginalised are now exposed to an even greater risk of hate speech and violence, at home and in public”.408 This resulted in an increase in the risk of domestic violence, physical and emotional abuse during the pandemic. There was also a negative impact on reporting and requests for help complicated by the fact that victims could be living in proximity to their abuser.409 This negative trend has also been recognised in Ireland by civil society organisations.410

Access to healthcare and other support services: The Government has recognized that “social distancing presents challenges for the LGBTI+ community in accessing healthcare and other support services”, and that “the impact on mental health may also be greater for those who are not ‘out’ to their families/in their living situation or whose families are

"Access to healthcare is of particular importance for transgender and intersex people, and worries about mental health is a key concern for LGBTI+ people."

https://www.iccl.ie/wp-content/uploads/2020/06/Update-8-Your-rights-in-the-pandemic-1.pdf





https://www.iccl.ie/news/people-in-direct-provision-not-getting-the-care-they-need/

https://documents-dds-ny.un.org/doc/UNDOC/GEN/N20/197/62/PDF/N2019762.pdf?OpenElement

https://documents-dds-ny.un.org/doc/UNDOC/GEN/N20/197/62/PDF/N2019762.pdf?OpenElement



https://www.coe.int/en/web/moscow/-/young-lgbti-persons-must-be-protected-against-violence-at-home-and-in-public-during-this-crisis-and-always





(the Migrant and Refugee Rights Centre) and the Irish Refugee Council to the Minister for Justice expressing serious concern at reports that residents of a Direct Provision Centre in Caherciveen were being detained against their will following the publication of a photograph with padlocks across the gates of the Centre.399 The Irish Refugee Council conducted a survey to understand people’s experiences of Direct Provision during the Covid-19 pandemic. Over half of the respondents stated that they “did not feel safe in Direct Provision during the pandemic”. 400

The pandemic has also highlighted the failure of the Government to collect data on health issues and vulnerabilities of people applying for international protection, which is a requirement of the EU Reception Conditions Directive.401 Further, different people living in Direct Provision face particular challenges, such as children. LGBTI+ people living in Direct Provision face specific issues, being at high risk of experiencing significant emotional distress and isolation.402 In February 2021, a white paper to end Direct Provision and establish a new international protection support service was published, which is a welcome step in addressing persistent human rights issues in the system.403 ICCL expressed concern at a pause in health and safety inspections of Direct Provision centres during the pandemic.404 We have long called for independent, rights-focused inspections of Direct Provision, which we believe take on a greater importance during a pandemic. We recently launched a campaign on this issue.405

399 ICCL, Monitoring rights during the pandemic, 2-8 May 2020, 2020.400 Irish Refugee Council, Submission to the Special Committee on Covid-19, 26 May 2020, p. 6.401 Irish Refugee Council, Submission to the Special Committee on Covid-19, 26 May 2020, pp. 3-4.402 Covid-19 NGO Group, Marginalised Groups and Promoting Equality, Inclusion and Human Rights in the Covid Crisis – A Joint Submission, 2020,

p. 32.403 Department of Children, Equality, Disability, Integration and Youth, A White Paper to End Direct Provision and to Establish a New International

Protection Support Service, 2021.404 Maresa Fagan, ICCL: Government must introduce proper direct provision inspections, 30 March 2021.405 ICCL Press Release, People in Direct Provision not getting the care they deserve, 30 March 2021.406 Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, Victor

Madrigal-Borloz, Violence and discrimination based on sexual orientation and gender identity during the coronavirus disease (COVID-19) pandemic, 28 July 2020, ref: A/75/258.


408 Statement by Secretary General Marija Pejčinović Burić ahead of the International Day against Homophobia, Transphobia and Biphobia (IDAHOT), Young LGBTI persons must be protected against violence at home and in public, during this crisis and always, 15 May 2020.


410 Covid-19 NGO Group, Marginalised Groups and Promoting Equality, Inclusion and Human Rights in the Covid Crisis – A Joint Submission, 2020, p. 32.

(vi) Sexual Orientation and Gender Identity It is widely recognized that LGBTI+ people have been heavily impacted by the pandemic406.

Violence against LGBTI+ people: As highlighted by the Steering Committee on Anti-Discrimination, Diversity and Inclusion (CDADI), for a number of people belonging to LGBTI communities, compliance with lockdown regulations meant returning home and potentially being confined in hostile environments with family members who are unsupportive or do not accept their sexual orientation or gender identity.407 As the Council of Europe Secretary General stated, “LGBTI+ young people who have traditionally been stigmatised and marginalised are now exposed to an even greater risk of hate speech and violence, at home and in public”.408 This resulted in an increase in the risk of domestic violence, physical and emotional abuse during the pandemic. There was also a negative impact on reporting and requests for help complicated by the fact that victims could be living in proximity to their abuser.409 This negative trend has also been recognised in Ireland by civil society organisations.410

Access to healthcare and other support services: The Government has recognized that “social distancing presents challenges for the LGBTI+ community in accessing healthcare and other support services”, and that “the impact on mental health may also be greater for those who are not ‘out’ to their families/in their living situation or whose families are

"Access to healthcare is of particular importance for transgender and intersex people, and worries about mental health is a key concern for LGBTI+ people."


GENDERED IMPACT OF RESTRICTIONS:

9. Provide increased funding to non-governmental organisations that provide services to victims of gender based violence, including domestic violence.

10. Introduce supports to address the disproportionate impact of Covid-19 on women and caregivers, including public and affordable childcare, universal mental health services, and improved supports for unpaid and paid care, in line with the National Women’s Council of Ireland’s recommendations.

11. Extend remote access to GP consultations on termination of pregnancy beyond the pandemic and clarify whether abortion is considered an urgent medical service for travel in terms of exemptions from the general ban on travel and exemption from mandatory hotel quarantine on return.

OLDER PEOPLE4. Facilitate the participation of older people in

policy-making that impacts them, including relating to Covid-19 restrictions.

5. Conduct an inquiry into the impact of Covid-19 related measures on the rights of older people, including the levels of oversight of care in nursing homes.

6. Provide for national clinical oversight of care of private nursing homes.

7. Implement the recommendations made by the Expert Panel on Nursing Homes.

8. Ratify OPCAT and create an effective and independent National Preventive Mechanism to inspect all places of detention, including nursing homes, prisons, police stations, direct provision centres, and psychiatric hospitals.

RECOMMENDATIONS TO GOVERNMENT ON PROTECTING AT-RISK COMMUNITIES

1. Carry out a regular human rights impact assessment on the impact of the emergency situation and restrictions on at-risk groups in order to ensure Government takes appropriate and sufficient measures to mitigate negative impacts.

CHILDREN2. Increase funding to children’s programmes

and services to ensure improved wellbeing and outcomes for children.

3. Develop a policy to ensure that in-school provision can continue to be provided to all marginalised and vulnerable children, including Traveller and Roma children during periods of school closures.

9.4 Recommendations

unsupportive.”411 Access to healthcare is of particular importance for transgender and intersex people, and worries about mental health is a key concern for LGBTI+ people.

As highlighted by ICCL and a number of Irish NGOs:

“LGBTI+ people are less likely to access mainstream health and social care services as they do not see these services as inclusive of them. This can lead to LGBTI+ people delaying access to health and social care when they need it, leading to poorer health and wellbeing outcomes, including higher rates of mental health problems including suicidality, self-harm, substance misuse, depression and anxiety.“412

On a positive note, LGBTI+ groups (including BeLonG To, LGBT Ireland and TENI) have been providing ongoing support to LGBTI+ people in Ireland, transferring their services online during the pandemic.413

411 Department of the Taoiseach, Report on Social Implications of Covid-19 in Ireland: Preliminary Assessment, 15 May 2020, p. 26.412 Covid-19 NGO Group, Marginalised Groups and Promoting Equality, Inclusion and Human Rights in the Covid Crisis – A Joint Submission, 2020, p. 32413 Covid-19 NGO Group, Marginalised Groups and Promoting Equality, Inclusion and Human Rights in the Covid Crisis – A Joint Submission, 2020, p. 32.





ETHNIC AND RACIALISED COMMUNITIES:

12. Take specific measures to address Traveller health and education inequalities, in line with Pavee Point’s recommendations.414

13. Fully implement the National Traveller and Roma Inclusion Strategy, including by developing concrete action plans with clear targets, indicators, outcomes, timeframes, and associated budget lines.

14. Take steps to ensure that disaggregated data on the basis of prohibited grounds of discrimination is collected during the exercise of all Covid-19 related enforcement powers.

414 Pavee Point, Covid-19 and Irish Travellers: Interim Responses, Reflections and Recommendations, 2020, p. 18.415 Irish Refugee Council, “Powerless” Experiences of Direct Provision during the Covid-19 Pandemic, August 2020.416 Migrant Rights Centre Ireland, Working to the Bone: The Experiences of Migrant Workers in the Meat Sector in Ireland, 2020, p. 6.

PEOPLE WITH DISABILITIES:

15. Ensure the provision of social care is classified as an essential service in Covid-19 regulations.

16. Repeal Part 5 of the Emergency Measures in the Public Interest (Covid-19) Act 2020, as noted above.

MIGRANTS, REFUGEES, AND ASYLUM-SEEKERS:

17. Take specific measures to address the impact of Covid-19 for those living in Direct Provision centres, in line with the Irish Refugee Council’s recommendations.415

18. Develop a policy to ensure that in-school provision can continue to be provided to all marginalised and vulnerable children, including children in Direct Provision and children of migrants, refugees and asylum seekers.

19. Fully implement the commitments to replace Direct Provision and establish a not-for-profit system.

LGBTI+ COMMUNITY:

22. Continue to resource LGBTI+ organisations offering frontline services to provide and adapt existing supports to reach people in their own homes, in line with Community Work of Ireland and others’ joint submission recommendations.

23. Monitor on an ongoing basis the issues faced by the LGBTI+ community, especially those most at-risk, and coordinate between the responses provided by LGBTI+ organisations and other mainstream services and supports. This can only be achieved if the organisations continue to be supported by the State through access to core funding, in line with Community Work of Ireland and others joint submission recommendations.

24. Specific needs of LGBTI+ people living in Direction Provision Centres should be addressed when designing responses to Covid.


21. Take specific measures to improve migrant workers’ rights, in line with MRCI’s recommendations.416


https://irishrefugeecouncil.eu.rit.org.uk/Handlers/Download.ashx?IDMF=419a9b2f-c405-4cc8-93c7-c27a618beb07







414 Pavee Point, Covid-19 and Irish Travellers: Interim Responses, Reflections and Recommendations, 2020, p. 18.415 Irish Refugee Council, “Powerless” Experiences of Direct Provision during the Covid-19 Pandemic, August 2020.416 Migrant Rights Centre Ireland, Working to the Bone: The Experiences of Migrant Workers in the Meat Sector in Ireland, 2020, p. 6.

PEOPLE WITH DISABILITIES:





18. Develop a policy to ensure that in-school provision can continue to be provided to all marginalised and vulnerable children, including children in Direct Provision and children of migrants, refugees and asylum seekers.


LGBTI+ COMMUNITY:

22. Continue to resource LGBTI+ organisations offering frontline services to provide and adapt existing supports to reach people in their own homes, in line with Community Work of Ireland and others’ joint submission recommendations.


24. Specific needs of LGBTI+ people living in Direction Provision Centres should be addressed when designing responses to Covid.




CONCLUSION AND RECOMMENDATIONS




CONCLUSION AND RECOMMENDATIONS




Throughout this report, ICCL has identified areas for improvement in the Irish Government’s response to Covid-19 from a human rights

perspective. We urge Government to ensure that the main emergency legislation underpinning the response is regularly reviewed in light of its impact on human rights. We call for robust debate whenever legislation is due for renewal. We identify clear areas for improvement when the Minister for Health makes regulations that restrict rights, including better consultation, prior publication, and clearer communication. We call for a proportionality assessment for every restriction on rights and certification that new laws are human rights compliant. We identify a need for more transparency in decision making processes that lead to restrictions on rights and highlight the need for all public actors to fulfil the public sector human rights and equality duty.

We call on government to prioritise targeted communication and supports over criminal sanctions when enforcing Covid-19 regulations. We echo that call in our recommendations to An Garda Síochána. We urge an immediate end to the use of spit hoods. We recommend better data collection to enable a more in-depth analysis of the Garda response. We call for increased use of video link for witnesses and juries to facilitate in-person criminal trials and more targeted resources to address the justice backlog.

We identify some areas where we consider the restrictions on rights may have been disproportionate. Blanket bans on the exercise of rights are to be avoided. They are likely to be disproportionate given that restrictions on rights must be the most minimal possible. In light of this, we call for exceptions to

blanket bans on gatherings for the pandemic-safe exercise of fundamental rights such as protest and worship. We call for a more targeted approach to restrictions on movement, including by distinguishing between geographical areas where the risk to public health is higher.

On the right to liberty, we call for the immediate repeal of law that removed safeguards for people challenging their detention in Mental Health Tribunal proceedings. We call for an end to mandatory hotel quarantine as soon as public health advice permits and, until then, to significantly strengthen a prior review and appeals process.

With regard to data rights, we call for an end to the tracker element of the Covid-app unless its efficacy is demonstrably proven. We urge a robust data protection approach to the roll-out of the EU Covid-19 Certificate and we call for an investigation into the controversy over arbitrary withdrawals of the Pandemic Unemployment Payment in the summer of 2020.

We make a number of recommendations on how at-risk communities can be better protected from a disproportionate impact of the restrictions, including better data collection, increased funding, supports, and human rights compliant inspections of all care settings. We repeat our longstanding call for the ratification of the Optional Protocol to the UN Convention against Torture.

Protecting the right to life and to health in a pandemic will always be the priority. However, ICCL believes that ensuring restrictions on other rights comply with the human rights framework protects us all too; now and well into the future as we ‘build back better’.

Conclusion

Protecting the right to life and to health in a pandemic will always be the priority. However, ICCL believes that ensuring restrictions on other rights comply with the human rights framework protects us all too; now and well into the future as we ‘build back better'


All Recommendations

FOR GOVERNMENT: LAW MAKING EMERGENCIES









A. Sunset clause: Ensure all emergency legislation has a sunset clause and, when legislation is due to be renewed, ensure sufficient time for meaningful Oireachtas debate and a human rights review.

B. Need for a meaningful proportionality test: Establish a statutory requirement that Government would carry out a meaningful proportionality test when restricting rights, including by making best efforts to ensure all limits on rights are the least restrictive possible to achieve their objectives.

C. Better Consultation: Establish a statutory requirement for consultation with the Irish Human Rights and Equality Commission whenever regulations are made that severely impact rights.

D. Better Scrutiny: Establish a statutory requirement that the Oireachtas has pre-legislative scrutiny over each set of regulations unless the exigency of the public health situation requires an urgent response.

E. Oireachtas Approval: The Oireachtas should be required to approve regulations within a set period of time.

F. Non-discrimination clauses. Include a broad non-discrimination clause in all emergency legislation to ensure government avoids potential discriminatory impacts of the law. Amend the current Emergency Legislation as follows:(i) Introduce a non-discrimination clause in s.31A(2) of the Health Act 1947, as amended by s.10 of




All Recommendations

FOR GOVERNMENT: LAW MAKING EMERGENCIES









A. Sunset clause: Ensure all emergency legislation has a sunset clause and, when legislation is due to be renewed, ensure sufficient time for meaningful Oireachtas debate and a human rights review.

B. Need for a meaningful proportionality test: Establish a statutory requirement that Government would carry out a meaningful proportionality test when restricting rights, including by making best efforts to ensure all limits on rights are the least restrictive possible to achieve their objectives.

C. Better Consultation: Establish a statutory requirement for consultation with the Irish Human Rights and Equality Commission whenever regulations are made that severely impact rights.

D. Better Scrutiny: Establish a statutory requirement that the Oireachtas has pre-legislative scrutiny over each set of regulations unless the exigency of the public health situation requires an urgent response.

E. Oireachtas Approval: The Oireachtas should be required to approve regulations within a set period of time.

F. Non-discrimination clauses. Include a broad non-discrimination clause in all emergency legislation to ensure government avoids potential discriminatory impacts of the law. Amend the current Emergency Legislation as follows:(i) Introduce a non-discrimination clause in s.31A(2) of the Health Act 1947, as amended by s.10 of




G. Limits on Broad Powers: Ensure emergency legislation does not create overly broad powers for any State actor. Amend the current Emergency Legislation as follows:(i) S.31A(1)(h) of the Health Act 1947, as amended by s.10 of the Emergency Legislation gives the

Minister for Health the power to make regulations that allows him to take “any other measures that the Minister considers necessary in order to prevent, limit, minimise or slow the spread of Covid-19”. This broad power requires explicit limitations such as a requirement to be ‘urgent, necessary and proportionate’.

(ii) S.31A(1)(j) provides that the Minister may make regulations on “such additional, incidental, consequential or supplemental matters as the Minister considers necessary or expedient for the purposes of giving full effect to the regulations.” The word “expedient” should be removed as this creates too low a threshold for the passing of measures that so significantly infringe on rights. Expediency can never be a factor that alone can be used to justify rights infringements.

H. Regular review: Establish a statutory requirement for a substantive review of the exercise of emergency powers.

I. Human Rights Impact Assessment: Establish a requirement to carry out a human rights impact assessment of the legislation should be included.

3. When drafting regulations under emergency legislation that restrict rights:

A. Publish emergency regulations before they enter into force.

B. Consult with the Irish Human Rights and Equality Commission where laws impact on rights.

C. Demonstrate that every restriction on rights has been subject to a proportionality assessment.

D. Enable pre-legislative scrutiny and oversight by the Oireachtas.

E. Ensure targeted, timely communication of restrictions on rights ensuring there is no blurring of lines between law and guidance.

F. Focus on ensuring compliance with public health advice through positive reinforcement of messaging, targeted communication and the provision of key support

G. Use criminal law as a means of enforcement in a sparing manner and only where clear public health advice grounded in scientific medical evidence is communicated effectively and efforts to ensure compliance through consent have demonstrably failed.

H. Utilise the ‘affected areas’ provision in the Emergency Legislation to ensure a targeted approach to rights restrictions.

4. For all decision making in an emergency that results in restrictions on rights:

A. Gather data, including by conducting a human rights impact assessment, on all restrictions on rights to inform decision making and to ensure laws and policies respond to real needs, discrimination is avoided, and differential impacts are minimised and mitigated by key supports.

B. Ensure transparency and effective communication of decision-making processes so the public understands the grounds for decisions that lead to different levels of restrictions on rights.

C. Improve composition of expert advisory teams, including the current team- NPHET, by adding a broader range of experts beyond public health specialists, including a human rights expert.

D. Ensure public sector actors understand and fulfil the public sector human rights and equality duty required under s.42 of the Irish Human Rights and Equality Commission Act 2014.


IMPACT OF RESTRICTIONS ON RIGHTS



7. Refrain from blanket bans on gatherings: Ensure that restrictions on private and family life are proportionate and any disproportionate negative impact on certain groups, such as people living alone, vulnerable people, and caregivers, is addressed from the outset of the emergency, such as through providing for support bubbles and childcare pairing arrangements.



10. Where there are geographical restrictions on the right to movement, a targeted approach linked with numbers of cases should be applied to ensure that the interference with the right to movement is the most minimal possible and the interference is demonstrably necessary and proportionate to the aim of protecting public health.


12 Repeal Part 5 of the Emergency Measures in the Public Interest (Covid-19) Act 2020, which limits safeguards relating to the Mental Health Tribunal. If Part 5 is not immediately repealed: (i) Ensure that patients are assisted in making written submissions, where that is the form of patient

representations to the Tribunal, including by a legal representative.(ii) Ensure that more than one member of the Tribunal is sitting and hears these cases and Tribunals

do not resort to a one-person Tribunal, except in the most exceptional cases and where there is a clear need for the Tribunal to operate in this manner.

MANDATORY HOTEL QUARANTINE



15. While mandatory hotel quarantine remains in place: (i) Ensure that all people entering mandatory hotel quarantine are given a physical and mental health

medical review and all necessary medical treatments, supports or interventions are provided. (ii) Implement a system of effective and transparent review before people must enter mandatory

hotel quarantine. (iii) Implement an effective and transparent appeal process for all people subject to mandatory

quarantine, including the right to an oral hearing with legal representation. (iv) Ensure people subject to mandatory hotel quarantine have access to legal representation. (v) Ensure all places of mandatory hotel quarantine are subject to regular inspections to ensure

conditions meet the standards for detention.(vi) Ensure the designation of States is based on non-discriminatory, objective, transparent and

foreseeable criteria that is based on up-to-date medical necessity.


IMPACT OF RESTRICTIONS ON RIGHTS



7. Refrain from blanket bans on gatherings: Ensure that restrictions on private and family life are proportionate and any disproportionate negative impact on certain groups, such as people living alone, vulnerable people, and caregivers, is addressed from the outset of the emergency, such as through providing for support bubbles and childcare pairing arrangements.



10. Where there are geographical restrictions on the right to movement, a targeted approach linked with numbers of cases should be applied to ensure that the interference with the right to movement is the most minimal possible and the interference is demonstrably necessary and proportionate to the aim of protecting public health.


12 Repeal Part 5 of the Emergency Measures in the Public Interest (Covid-19) Act 2020, which limits safeguards relating to the Mental Health Tribunal. If Part 5 is not immediately repealed: (i) Ensure that patients are assisted in making written submissions, where that is the form of patient

representations to the Tribunal, including by a legal representative.(ii) Ensure that more than one member of the Tribunal is sitting and hears these cases and Tribunals

do not resort to a one-person Tribunal, except in the most exceptional cases and where there is a clear need for the Tribunal to operate in this manner.

MANDATORY HOTEL QUARANTINE



15. While mandatory hotel quarantine remains in place: (i) Ensure that all people entering mandatory hotel quarantine are given a physical and mental health

medical review and all necessary medical treatments, supports or interventions are provided. (ii) Implement a system of effective and transparent review before people must enter mandatory

hotel quarantine. (iii) Implement an effective and transparent appeal process for all people subject to mandatory

quarantine, including the right to an oral hearing with legal representation. (iv) Ensure people subject to mandatory hotel quarantine have access to legal representation. (v) Ensure all places of mandatory hotel quarantine are subject to regular inspections to ensure

conditions meet the standards for detention.(vi) Ensure the designation of States is based on non-discriminatory, objective, transparent and

foreseeable criteria that is based on up-to-date medical necessity.


EU COVID-19 CERTIFICATE:

16. Ensure that the EU Covid-19 Certificate complies with privacy and data protection rights, including by ensuring the following:(i) The system’s specifications must be published to allow for independent scrutiny.

(ii) The system’s Data Protection Impact Assessment must be published.

(iii) The certificates must not conflict in any way with the GDPR.

(iv) Principles of effectiveness, necessity, proportionality, non-discrimination, and purpose limitation must guide their creation and these principles must be continuously reviewed.

(v) The Irish authorities must carry out a human rights impact assessment before the system is launched and afterward to measure their impact. ICCL notes that the European Commission had not carried out an impact assessment to identify the impact of these measures and to assess the effectiveness of existing, less intrusive measures.

(vi) Certificates should have a limited amount of personal data.

(vii) Data obtained when verifying the certificates should not be retained.

(viii) A central database (of any data obtained) should not be established.

(ix) A clear review process and 12-month sunset clause must be set down. From then, there would be no justification in requiring citizens to present health documents to exercise their right to free movement.

(x) Purpose of the certificates must be clearly defined.

(xi) A mechanism for how they will be monitored must be provided.

(xii) Use of any data after the pandemic must be forbidden. There must be no future use of the certificates once disbanded.

(xiii) Irish authorities must provide universal, accessible, timely and free of charge testing for those who wish to use the certification system.

(xiv) Any entity or third party that will process and receive data via these certificates should be made public so citizens can exercise their GDPR rights.

AT-RISK COMMUNITIES:

17. Carry out a regular human rights impact assessment on the impact of the emergency situation and restrictions on at-risk groups in order to ensure Government takes appropriate and sufficient measures to mitigate negative impacts.

CHILDREN:

18. Increase funding to children’s programmes and services to ensure improved wellbeing and outcomes for children.

19. Develop a policy to ensure that in-school provision can continue to be provided to all marginalised and vulnerable children, including Traveller and Roma children.


OLDER PEOPLE:

20. Facilitate the participation of older people in policy-making that impacts them, including relating to Covid-19 restrictions.




24. Ratify OP-CAT and create an effective and independent National Preventive Mechanism to inspect all places of detention, including nursing homes, prisons, police stations, direct provision centres, and psychiatric hospitals.


25. Provide increased funding to non-Governmental organisations that provide services to victims of gender based violence, including domestic violence.

26. Introduce supports to address the disproportionate impact of Covid-19 on women and caregivers, including public and affordable childcare, universal mental health services, and improved supports for unpaid and paid care, in line with National Women’s Council of Ireland’s recommendations.






PEOPLE WITH DISABILITIES



417 Pavee Point, Covid-19 and Irish Travellers: Interim Responses, Reflections and Recommendations, 2020, p. 18.



OLDER PEOPLE:

20. Facilitate the participation of older people in policy-making that impacts them, including relating to Covid-19 restrictions.






25. Provide increased funding to non-Governmental organisations that provide services to victims of gender based violence, including domestic violence.

26. Introduce supports to address the disproportionate impact of Covid-19 on women and caregivers, including public and affordable childcare, universal mental health services, and improved supports for unpaid and paid care, in line with National Women’s Council of Ireland’s recommendations.






PEOPLE WITH DISABILITIES



417 Pavee Point, Covid-19 and Irish Travellers: Interim Responses, Reflections and Recommendations, 2020, p. 18.




34. Develop a policy to ensure that during periods of school closures, in-school provision can continue to be provided to all marginalised and vulnerable children, including children in Direct Provision and children of migrants, refugees and asylum seekers.




LGBTI+ COMMUNITY:

38. Continue to resource LGBTI+ organisations offering frontline services to provide and adapt existing supports to reach people in their own homes, in line with Community Work of Ireland and others joint submission recommendations.


40. Specific needs of LGBTI+ people living in Direction Provision Centres should be addressed when designing responses to Covid-19.

FOR THE DEPARTMENT OF JUSTICE AND MINISTER FOR JUSTICE:

1. Enact amendments to the Garda Station Legal Advice Scheme to enable payment for remote consultations and advice during interviews.

2. Allocate additional judges to the criminal courts to mitigate the severe backlog of cases.

3. Consider suitable applications for enhanced remission and temporary release as a means to reduce prison overcrowding.

4. Adequately resource and prioritise reforms to the Coroner’s System that would address the backlog in inquests caused by Covid-19 and transform it into a full-time professional service.

418 Irish Refugee Council, “Powerless” Experiences of Direct Provision during the Covid-19 Pandemic, August 2020.419 Migrant Rights Centre Ireland, Working to the Bone: The Experiences of Migrant Workers in the Meat Sector in Ireland, 2020, p. 6.

https://irishrefugeecouncil.eu.rit.org.uk/Handlers/Download.ashx?IDMF=419a9b2f-c405-4cc8-93c7-c27a618beb07



FOR THE MINISTER FOR HEALTH, HSE AND THE DEPARTMENT OF HEALTH:

REGULATIONS

1. Ensure a proportionality test and consultation with IHREC is undertaken when making regulations under emergency legislation that restrict rights.

2. Ensure transparency to assist the public in understanding the grounds and processes of decision-making leading to measures that restrict some rights in order to protect public health.

COVID APP



5. Publish details relating to the figures for the 14 metrics that the app has, reportedly, been collecting on both a daily and cumulative basis to date




1. Commission an independent review of the activities of social welfare inspectors at Ireland’s ports and airports to ascertain if they have at all times been carried out lawfully.

2. The review should establish how many claims for social welfare payments were suspended due to the airport checks in a manner in which the claimants’ rights to fair procedures were breached.

3. It should outline how the Department selected particular flights and passengers.

4. It should be completely transparent about how data was and continues to be shared between Government Departments.


FOR THE MINISTER FOR HEALTH, HSE AND THE DEPARTMENT OF HEALTH:

REGULATIONS

1. Ensure a proportionality test and consultation with IHREC is undertaken when making regulations under emergency legislation that restrict rights.

2. Ensure transparency to assist the public in understanding the grounds and processes of decision-making leading to measures that restrict some rights in order to protect public health.

COVID APP



5. Publish details relating to the figures for the 14 metrics that the app has, reportedly, been collecting on both a daily and cumulative basis to date




1. Commission an independent review of the activities of social welfare inspectors at Ireland’s ports and airports to ascertain if they have at all times been carried out lawfully.

2. The review should establish how many claims for social welfare payments were suspended due to the airport checks in a manner in which the claimants’ rights to fair procedures were breached.

3. It should outline how the Department selected particular flights and passengers.

4. It should be completely transparent about how data was and continues to be shared between Government Departments.


FOR AN GARDA SÍOCHÁNA (AGS):

1. Facilitate remote access between solicitors and suspects by videolink for private consultations and during police interviews.

2. Prioritise a community-based policing approach to enforcing Emergency Regulations and only use coercive measures, such as issuing fines or referral to the DPP, as a last resort. Apply a high threshold to non-compliance such as flagrant, repeated breaches of the penal provisions within the Regulations.

3. Immediately end the use of spit hoods, which potentially violate the absolute right not to be tortured or subjected to inhuman or degrading treatment or punishment.

4. Record the use of enforcement powers and publish disaggregated data on all policing encounters in the context of enforcing the Emergency Regulations.

5. Publish detailed guidelines on how AGS is approaching all policing operations related to enforcing the Emergency Regulations, including inspections, checkpoints, issuing fines and referrals to the DPP.


7. Commission a review into the role of AGS in the activities of social welfare inspectors at Ireland’s ports and airports

FOR THE COURTS SERVICE:

1. Continue to seek out potential venues which can be allocated to the hearing of criminal trials safely.

2. Jury trials should proceed by invoking additional safeguards such as staggered witness times and the use of videolink.

3. District Court hearings should resume by invoking additional safeguards such as staggered hearing times and the use of videolink for witnesses

4. Expand the availability of videolink consultation for prisoners.

FOR THE DIRECTOR OF PUBLIC PROSECUTIONS:

1. Consider alternatives to prosecution in appropriate cases.

2. Consider the scope and importance of the right to protest when weighing the public interest in pursuing prosecutions against protest organisers for breach of Covid-19 restrictions.

FOR THE DATA PROTECTION COMMISSIONER:

1. Closely monitor the impact on data protection rights of proposed technological solutions to emergency situations.

2. Publish a note on its investigation into the activities of social welfare inspectors at Ireland’s ports and airports to ascertain if they were carried out lawfully.







CL_08

CL_08

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